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*  . ... 


THE 


NEW-YORK  JUSTICE; 


OR,    A 


OF  THE  LAW 


RELATIVE   TO 


JUSTICES  OF  THE  PEACE 


IN   THE 


STATE  OF  NEW-YORK. 


BY  JOHN  A.  DUNLAP,  ESQ. 

COUNSELLOR  AT  LAW. 


PRINTED  AND  PUBLISHED  BY  ISAAC  RtLET. 

JVeic-Fert— 1315. 


T 


. 

P  E'  IT  RK '  i  EM  BERET).  That  on  tlie  second  day  of  Sfptember,  in  the  forti- 
es of  America,  Itaae  Rilfy.  of  the  said  d 
the  title  of  a  book,  dit  ri.  -.?  proprietor, 

.vi-  : 

.  Digest  of  tlie  Law  relative  to  Justices  of  the  Peace  ia 
"  tb'-  -  ov  JMIH  A.  Dun!ii|,,  Esq.  Counielloi  at  Law." 

liicoafon:.  •  irtbe 

/u-nt  or  L'-ai:; 

.  durin?  the  times  therein  r 

•  ntitled,  an  <••  •. 
- 

:  ."%  tiitrtin  w    ' 

THER^N  UrDP. 


PREFACE. 


A  COMPILATION  of  the  law  relating  to  the  duties 
of  justices,  within  this  state,  appears  to  have  been 
long  wanted,  and  it  is  matter  of  surprise  that  a  work 
of  such  evident  utility  has  not  yet  been  executed 
and  made  public.  The  modern  English  works, 
upon  the  office  of  a  justice  of  the  peace,  are  not 
only  voluminous,  and  of  course  expensive,  and  fre- 
quently difficult  to  obtain,  but  also  at  least  one  half 
of  them  consists  of  matter  totally  inapplicable  in 
this  state.  A  compendium  of  Burns*  has  been  in 
use  among  us  to  a  certain  extent;  but  it  labours  un- 
der the  defect  of  being  formed  solely  upon  an  En- 
glish basis,  without  being  adapted  to  the  particulars 
in  which  our  own  law  varies  from  that  of  England. 

The  common  law,  it  is  true,  forms  the  most  im- 
portant branch  of  our  judicial  system.  Many  of 
the  English  acts  of  parliament  have,  without  altera- 
tion, or  with  merely  verbal  changes,  been  transfer- 
red to  our  statute  book,  and  others  have  been  adopt- 
ed, in  part,  or  with  modifications;  and  wherever  the 
statutes  of  the  two  countries  are  similar,  the  deci- 
sions of  the  courts  of  Westminster  Hall  are  regarded 
as  authoritative  guides  to  the  construction  of  them. 
Hence  no  inconsiderable  part  of  ^e  information 
required  by  a  magistrate  must  be  <jr^wn  from  En- 
glish sources,  and  by  consulting  Burns'  Justice,  (a 
work  deservedly  of  high  reputation,)  or  the  com- 
pend  above  mentioned,  he  will  be  able  to  act  with 
sajety  and  certainty  in  a  variety  of  cases. 

But  as  there  is  occasionally  a  diversity  between 


*  The  Conductor  Gencralh. 


vi  PREFACE. 

the  statute  law  of  England  and  of  this  state  ;  as  in 
some,  and  those,  too,  important,  cases  our  legislature 
has  imposed  new  duties  upon,  and  enlarged  the 
authority  of  justices  of  the  peace,  and  as  the  deci- 
sions of  the  courts  of  this  state,  not  only  on  questions 
of  common  law,  of  which  they  are  the  highest  ev  i- 
dence,  but  also  on  the  construction  of  various  acts 
of  the  legislature,  have  now  become  numerous,  and 
are  constantly  increasing,  an  acquaintance  with 
what  is  exclusively  our  own  law  becomes  indis- 
pensable. 

It  has  been  the  endeavour  of  the  compiler  of  the 
present  work  to  combine  the  peculiar  law  of  this 
state  with  so  much  of  the  English  law  as  is  material 
and  applicable.  The  object  of  this  Digest  is,  to 
furnish,  in  as  small  a  compass  as  possible,  the  most 
useful  information  to  magistrates.  Matters  merely 
local  in  their  nature,  and  such  as  would  not  proba- 
bly be  of  practical  utility,  have  been  omitted.  It 
was  not  intended  to  make  a  digest  of  the  law  in 
general,  or  of  any  entire  branch  of  it,  civil  or  cri- 
minal, but  merely  to  collect  the  most  important 
particulars  relative  to  the  duties  of  justices  of  the 
peace:  nor  is  it  pretended  that  this  work,  limited  as 
the  design  of  it  is,  is  perfect  even  to  the  extent  that 
it  undertakes  to  go.  The  compiler,  fully  sensible 
of  his  inability  to  do  justice  to  the  subject,  must 
throw  himself  upon  the  clemency  of  the  reader  for 
many  deficiencies,  and,  he  fears,  some  inaccuracies. 

The  law  of  ^ivil  actions  has  been  discussed  no 
farther  than  the  twenty-five  dollar  act,  and  the  cases 
decided  undo-  it.  The  proposed  limits  of  the  book 
required  this  restriction ;  and  it  was  thought  neces- 
sary, that  the  work  should  be  circu-mscribed  in  its 
extent,  thereby  to  aiford  a  better  chance  for  the 
success  of  the  experiment.  For  the  same  reason, 
the  law  of  evidence,  wrhich,  if  handled  in  the 
briefest  manner,  would  have  made  a  title  of  np 
inconsiderable  magnitude,  has  been  left  untouched. 


PREFACE.  Vii 

The  duties  of  a  justice,  as  a  conservator  of  the 
jjcacej  and  an  administrator  of  criminal  law,  have 
been  a  principal  object  of  attention  in  forming  this 
Disre.4.  That  branch  of  the  law,  which,  while  it 
provides  for  the  apprehension  of  offenders,  the  pun- 
ishment of  crimes,  the  prevention  of  violence,  and 
the  preservation  of  the  quiet  of  the  community, 
regards  the  liberty  of  the  citizen  with  the  utmost 
tenderness,  and  prohibits  the  infraction  of  it,  except 
for  the  most  urgent  causes,  is  of  primary  importance 
to  the  magistrate.  He  may  frequently  be  obliged 
to  act  without  much  time  for  deliberation,  and  in 
many  cases  an  error  will  be  fatal :  the  consequence 
of  his  mistake  may  be  an  injury,  either  to  the  party, 
by  putting  his  life,  his  liberty,  or  his  reputation  in 
jeopardy ;  or  to  the  community,  by  letting  an  of- 
fender escape.  The  indispensable  necessity,  there- 
fore, of  a  guide,  in  cases  of  doubt  or  difficulty  of  this 
kind,  is  obvious,  and  it  has  been  the  object  of  the 
compiler  to  collect  every  thing  that  appeared  mate- 
rial to  this  part  of  the  subject. 

All  the  statutory  provisions,  not  merely  local,  by 
which  the  jurisdiction  of  justices  is  enlarged,  have 
been  collected  under  their  proper  titles ;  such  are 
the  various  laws  imposing  penalties  of  or  under  the 
sum  of  twenty-five  dollars ;  and  those  by  which 
they  are  invested  with  authority  in  relation  to  the 
government  arid  police  of  their  respective  towns : 
for  instance,  the  acts  respecting  highways,  and  for 
the  relief  of  the  poor. 

It  may  not  be  improper  to  state  the  materials  from 
which  this  work  has  been  compiled.  The  acts  of 
the  legislature  are  the  first  in  importance  and  au- 
thority, and  the  reported  decisions  of  the  supreme 
court  are  entitled  to  the  next  place.  Great  use  has 
been  made  of  Burns'  Justice,  the  arrangement  of 
which  has  been  generally  followed :  in  the  criminal 
division,  East's  Pleas  of  the  Crown,  an  unfinished 
work,  has  been  found  of  singular  advantage  ;  and, 


PREFACE. 

where  East  has  failed,  Hawkins  and  Burns  have 
been  adopted  as  guides.  Blackstone's  Commen- 
taries have  been  freely  used,  as  also  the  American 
edition  of  Bacon's  Abridgment.  These  are  the 
principal  treatises  to  which  recourse  has  been  had. 
The  English  books  of  reports  have  been  consulted, 
and  are  frequently  cited. 

A  few  precedents  have  been  subjoined  in  an  ap- 
pendix. The  size  to  which  the  work  had  already 
increased  precluded  the  admission  of  a  larger 
number;  and  it  was  deemed  the  less  necessary, 
inasmuch  as  printed  blanks  of  most,  if  not  all,  the 
proceedings  under  the  twenty-five  dollar  act,  are  in 
common  use,  and  as  books  containing  a  variety  of 
precedents  may  easily  be  obtained.* 


*  "The  Clerk's  Assistant,"  published  at  Poughkeepsie,  in  1814,  con- 
tains a  number  of  useful  forms  for  justices  of  the  peace,  collected  princi- 
pally from  Burn-:. 


THE 

NEW-  YORK  JUSTICE. 


ACCESSORY. 

-  I.  Of  accessories  in  general. 

II.  Of  accessories  before  the  fact. 

III.  Of  accessories  after  the  fact. 

IV.  How  they  are  to  be  proceeded  against. 

I.   Of  accessories  in  general. 

An  accessory  is  he  who  is  not  the  chief  actor  in  the  offence,  *  Black.  Com.  35, 
nor  present  at  its  performance,  but  is  some   way  concerned 
therein,  either  before  or  after  the  fact  committed. 

In  high  treason  there  are  no  accessories,  but  all  are  princi-  4  Black.  Com.  35, 
pals  ;    the  same  acts  that  make  a  man  accessory   in   felony,  f^p  P<  c  ais 
making  him  a  principal  in  high  treason.     In  murder  and  felo-   635-  61t>-  3  imt. 
»ies  there  may  be  accessories,  except  only  in  those  offences 
which,  by  judgment  of  law,  are  sudden  and  unpremeditated,  as 
manslaughter,  or  the  like  ;  which,  therefore,  cannot  have  any 
accessories  before  the  fact.     So  in  petit  larceny,  and  in  assault, 
and  all  crimes  under  the  degree  of  felony,  there  are  no  accesso- 
ries, either  before  or  after  the  fact  ;  but  all  persons  concerned 
therein,  if  guilty  at  all,  are  principals.*     An  accessory  cannot 
be  guilty  of  a  higher  crime   than   his   principal,    being  only 
punished  as  a  partaker  of  his  guilt. 

II.   Of  accessories  before  the  fact. 

An  accessory  before  the  fact  is  one  who,  being  absent  at  the  4  Black,  com.  35. 
time  of  the    crime    committed,  doth   yet  procure,  persuade,   Fmter,'  121^'  "' 
counsel  or  command  another  to  commit  a  crime,  or  procures  it 
to  be  done  through  the  intervention  of  a  third  person. 

If  such  procurer  or  the  like  be  present,  he  is  guilty  of  the*Foiter  3X7> 


*  But  it  seems  that,  from  principles  of  natural  justice,  the  person 
who  did  the  act  ought,  in  some  respects,  to  be  considered  the  principal, 
and  the  others  in  the  nature  of  accessories  ;  so  that  the  accessorial  agent 
ought  not  to  be  tried  until  the  principal, whp  did  the  act,  had  been  coa- 
victed.  2  Hank,  c.  29.  s.  1.  n.  (1) 

'    t  I  ] 


J  ACCESSORY. 

crime  as  principal,  not  as  principal  in  the  first  degree,  that  is,  as 
having  with  his  own  hand  committed  the  fact,  hut  as  princi- 
pal in  the  second  degree,  as  having  been  present,  aiding  and 
abetting  at  the  commission  of  it. 

Foiter, 349.  Yet  it  is  not  to  he  understood,  that  in  order  to  constitute  a 

principal,  it  is  in  every  case  necessary  that  he  should  be  pre- 
sent :  as  if  A.,  with  intention  to  destroy  B.,  lays  poison  properly 
disguised  in  his  way,  and  B.  takes  it  and  dies ;  A.,  though  ab- 
sent when  the  poison  was  taken,  is  a  principal.  The  law  is  the 
same  in  the  case  of  inciting  a  madman,  or  a  child,  not  at  years 
of  discretion,  to  commit  murder,  or  other  felony,  in  the  absence 
of  the  person  inciting  him. 

4  Biaek.  Com.  37.        ^  >s  likewise  a  rule,  that  ifc  who  in  anywise  commands  or 
FU«<T,  369. 370. 2   counsels  another  to  commit  an  unlawful  act,  is  accessory  to  all 

H«wk.  C.2«.  J.18,        , 

19, 20,21.  that  ensues  upon  that  unlawful  act,  though  the  principal  varies 

in  circumstance  of  time  or  place,  or  in  the  manner  of  exe- 
cution, from  the  command ;  for  the  substantial  part  is  com- 
plied with  :  as  if  A.  command  B.  to  poison  C.,  and  he  kills  him 
with  a  sword,  A.  is  accessory.  So,  if  the  execution  of  the  fact 
exceed  the  command,  as  if  the  command  be  to  commit  a  rob- 
bery, and  the  robber  kills  the  person  robbed.  But  where  the 
fact  varies  in  the  substance  and  nature  of  the  crime  from  the 
command,  as  when  the  principal  being  solicited  to  commit  a 
felony  of  one  kind,  wilfully  and  knowingly  commits  a  felony  of 
another  kind,  he  will  stand  single  in  that  offence,  and  the  person 
soliciting  will  not  be  involved  in  his  guilt.* 

III.   Of  accessories  after  the  fact. 

*  Black.  Com.  39.        An  accessory  after  the  fact  is  one  who,  knowing  a  felony  to 

t  Hate,  P.  C.  ei..   j,ave  been  committed,  receives,  relieves,  comforts,  or  assists  the 

male,  p.  C.622.   felon,  or  who  receives  one  whom  he  knows  to  be  accessory  to  a 

felony.     Therefore,  to  make  an  accessory  ex  post  facto,  it  is,  in 

2Hawk.P.c.si9.   the  first  place,  requisite  that  he  know  of  the  felony  committed. 

In  the  next  place,  he  must  receive,  relieve,  comfort,  or  assist 

him.     And,  generally,  any  assistance  whatever,  given  to  a  felon, 

to  hinder  his  being  apprehended,  tried,  or  suffering  punishment, 

makes  the  assistor  an  accessory :  as  furnishing  him  with  a  horse, 

to  escape  his  pursuers ;  money  or  victuals  to  support  him  ;  a 

house,  or  other  shelter,  to  conceal  him;  or  open  force  or  vio 


*  So  if  a  man  command  another  to  commit  a  felony  on  a  particular 

person  or  thing,  and  he  do  it  on  another ;  as  to  kill  A.,  and  he  kill  B.,  or 

to  burn  the  house  of  A.,  and  he  burn  the  house  of  B.,  or  to  steal  an  ox. 

itrid  he  steal  a  horse,  or  to  steal  such  an  horse,  and  he  steal  another,  the 

person  who  gives  the  command  is  not  an  accessory.     (2  Hawk.  c.  29. 

If  the  person  commanding,  before  the  fact  be  committed,  repent 

r.nd  countermand  his  consent  or  order,  be  will  not  be  an  accessorv 

P.  C.  618.  2  Haick.  c.  29.  s.  16. 


3  Hawk.  c.  29.  s. 

26,  27,  128. 

1  Hale,  P.  C.  619. 


1  Hale,  P.  C.  020, 
Ml.  2  Hawk.  i'. 
29.  s.  30. 


1  Hale,  P.  C.  (519. 


IHale,  P.C.  619, 
620. 


Sess.  36.  c.  8.  1  R. 
L.  496.  et  >jdc 
post,  IV. 

4  Black.  Com.  38. 
2  Hawk.  c.  29.  s. 
35. 


ACCESSORY. 

lence  to  rescue  or  protect  him  ;  or  voluntarily  suffering  him  to 
escape  after  he  has  been  arrested ;  or  taking  money  from  him 
to  permit  him  to  escape. 

So,  if  a  felon  be  in  gaol,  to  convey  instruments  to  him  to 
break  prison  to  make  an  escape,  or  to  bribe  the  gaoler  to  let  him 
escape,  makes  the  party  an  accessory  ;  but  to  relieve  him  with 
necessary  meat,  drink,  or  clothes,  for  the  sustentation  of  life,  if 
he  be  in  prison,  or  to  relieve  and  sustain  him  if  he  be  bailed,  will 
not  make  the  person  so  doing  an  accessory. 

Neither  will  a  bare  omission  or  neglect  to  take  the  proper 
means  to  arrest  a  felon  arid  bring  him  to  justice,  although 
punishable,  make  the  party  an  accessory  ;  for,  until  he  be  ar- 
rested, nothing  short  of  an  active  co-operation  in  his  escape 
will  be  sufficient. 

If  the  owner  receives  his  goods  again  from  the  felon,  simply 
without  any  contract  to  favour  him  in  his  prosecution,  or  to  for- 
bear prosecution,  it  is  lawful ;  but  to  receive  them  upon  agree- 
ment not  to  prosecute,  or  to  prosecute  faintly,  is  theft  bote,  but 
does  not  make  him  an  accessory  ;  neither  does  the  bare  receiv- 
ing the  goods,  although  knoAving  them  to  be  stolen  ;  yet  the  party 
is  punishable  as  for  a  misdemeanour. 

In  order  to  make  a  receiver  or  assistant  an  accessory,  it  h 
necessary  that  the  felony  should  be  complete  at  the  time  of  the 
receipt,  or  of  the  assistance  given.  As  if  one  wounds  another 
mortally,  and  after  the  wound  given,  but  before  death  ensues, 
a  person  assists  or  receives  the  delinquent,  this  does  not  make 
him  an  accessory  to  the  homicide  ;  for  till  death  ensue  there  is 
no  felony  committed. 

As  to  how  far  the  relationship  between  the  felon  and  receiver 
purges  the  latter  from  the  guilt  of  an  accessory,  the  law  is  very 
strict,  and  admits  of  but  one  exception  to  the  general  rule,  that 
the  nearest  relations  shall  not  aid  or  receive  one  another.  A 
parent  receiving  a  child,  a  child  a  parent,  a  brother  a  brother,  a 
master  a  servant,  a  servant  a  master,  are  all  accessories.  But 
a  feme  covert  does  not  become  an  accessory  by  receiving  or 
concealing  her  husband,  for  she  is  presumed  to  act  under  his 
coercion,  and  therefore  she  is  not  bound,  neither  ought  she  to 
discover  her  lord  :  the  law,  however,  does  not  extend  this  ex- 
emption to  the  case  of  the  wife  committing  felony  ;  if  her  hus- 
band relieve  her,  he  is  still  an  accessory. 

IV.  How  they  are  to  be  proceeded  against. 

If  the  principal  be  acquitted  of  a  felony,  in  such  manner  that  2  Hawk.  c.  2r>.  ». 
he  may  plead  such  acquittal  in  bar  of  any  subsequent  prosecu-   ^4Bhck.Cmn. 
tion  for  the  same  felony,  the  accessory  shall  not  be  arraigned, 
but  shall  be  discharged.*     The  accessory,   however,  may  be 

*  If  the  principal  havo  broi  convicted,  it  is,  notwithstanding,  com- 
petent for  the  accessory.  «n  hi*  trial,  to  provr  tlir  principal  innocent. 


4  Black.  Cora.  38, 

39. 

2  Kawk.  c.  2P.  s. 

24.  3  Iii,u  106. 

1  Kale,  P.  C,  o2 1 . 


4  ACCESSORY. 

arraigned  before  ttm  principal  is  attainted,  yet  fcc  cannot  be 
tried  as  long  as  the  principal  remains  liable  to  be  tried.  And 
by  the  old  common  law,  if  the  principal  had  never  been  indict- 
ed at  all,  and  stood  mute,  had  challenged  above  thirty-five  ju- 
rors peremptorily,  had  claimed  the  benefit  of  clergy,  had  ob- 
tained a  pardon,  or  had  died  before  attainder,  the  accessory,  in 
any  of  these  cases,  coyld  not  be  arraigned. 

?'A'  L*  %8'  *' '"  '^0  °^v'a^e  th'3  defect*  it  is  enacted,  "That  if  any  principal 
felon  shall  be  convicted  of  any  felony,  it  shall  be  lawful  to  pro- 
ceed against  any  accessory,  either  before  or  after  the  fact,  in 
the  same  manner  as  if  such  principal  felon,  had  been  attainted 
thereof,  notwithstanding  any  such  principal  felon  shall  be  par- 
doned, or  otherwise  delivered  before  attainder  ;  and  every  such 
accessory  shall  suffer  the  same  punishment,  if  he  be  convicted, 
as  he  should  have  suffered  if  the  principal  had  been  attainted. 
And  further,  That  it  shall  be  lawful  to  prosecute  and  punish 
every  person  buying  or  receiving  any  stolen  goods,  knowing  the 
same  to  be[stolen,  as  for  a  misdemeanour,  although  the  principal 
felon  be  not  convicted  of  the  said  felony,  which  shall  exempt 
the  offender  from  being  punished  as  accessory  to  such  felony 
after  the  fact,  if  the  principal  shall  be  afterwards  convicted." 

2-Hawk. c.29.5.48.  It  was  doubtful  at  common  law,  when  a  felony  was  commit- 
ted in  one  county,  and  a  person  was  accessory  to  it  in  another 
county,  whether  the  accessory  could  be  indicted  at  all :  that 
there  might  not  be  a  failure  of  justice  in  such  cases,  it  is  now 
provided  by  the  legislature,  in  imitation  of  an  English  statute  to 
the  same  effect,  "That  when  any  murder  or  felony  shall  be 
committed  in  one  county,  and  any  other  person  shall  be  acces- 
sory in  any  manner  to  any  such  murder  or  felony  in  any  other 
county,  then  an  indictment  found  against  such  accessory  for  the 
same,  at  any  court  of  oyer  and  terminer  and  gaol  delivery,  or 
general  sessions  of  the  peace  in  the  county  where  such  offence 
of  accessory  shall  be  committed,  shall  be  as  good  and  effectual 
as  if  the  said  principal  offence  had  been  committed  within  thn 
same  county  where  the  same  indictment  against  such  accessory 
shall  be  found  ;  and  the  courts  of  oyer  and  terminer  and  gao! 
delivery  in  the  county  where  the  offence  of  any  such  accessory 
so  indicted  shall  be  committed,  shall,  upon  a  certificate  that  the 
principal  is  attainted,  convicted,  or  otherwise  discharged  of  the 
principal  felony,  to  be  given  under  the  hand  and  seal  of  the 
cleric  who  has  the  custody  of  the  records  of  the  same,  and 
which  certificate  such  clerk  is  hereby  required  to  give,  on  ap- 
plication in  writing  from  either  of  the  judges  of  the  said  courts, 
proceed  to  try  every  such  accessory  in  the  county  where  the 
offence  of  such  accessory  was  committed,  in  like  manner  as  if 
the  principal  offence  and  accessory  had  been  committed  in  such 
county,  and  thereupon  to  give  judgment,  and  award  execution, 
according  to  law."  Sess.  26.  c.  8.  s.  5.  1  R.  L.  -IP. 5. 

4  Qiafx.Com.  so,      Tjie  ru]e  of  «;ie  common  law  was.  that  accessories  should  n;f 


ACTIONS  QUI  TAM. 

ter  the  same  punishment  as  their  principals :  with  respect  to 
accessories  before  the  fact,  no  alteration  has  been  made  by  th* 
legislature  of  this  state  ;  but  accessories  to  any  felony  whatso- 
tver  after  the  fact,  are  punishable  with  fine  and  imprisonment ; 
or  instead  of,  or  in  addition  to  a  fine,  may,  in  the  discretion  of 
the  court,  be  adjudged  to  imprisonment  in  the  state  prison  for 
the  term  of  three  years.  Seas.  36.  c.  29.  B.  *3.  1  R.  L.  410. 


ACTIONS  QUI  TAM. 

Actions  qui  tarn  are  such  as  are  given  by  statutes  which  im- 
pose a  penalty,  and  create  a  forfeiture  for  the  neglect  of  some 
duty,  or  commission  of  some  crime,  to  be  recovered  by  action 
or  information,  at  the  suit  of  him  who  prosecutes,  as  well  in  the 
name  of  the  people  of  the  state  as  in  his  own.  And  they  are 
sometimes  called  popular  actions,  when  the  penalty,  or  part  of  it, 
is  given  to  any  one  who  will  sue  for  the  same. 

There  are  a  number  of  penalties  of  the  amount  of  twenty- 
five  dollars  and  under,  dispersed  through  a  variety  of  statutes, 
which  are  required  to  be  sued  for  in  a  justice's  court.  The  pro-- 
ceedings  in  such  cases  must,  in  general,  conform  to  the  course 
pointed  out  by  the  twenty-five  dollar  act,  which  is  foreign  from 
the  subject  of  this  compilation  ;  yet  as  much  of  these  pages 
will  be  taken  up  with  the  consideration  of  these  penalties,  it 
may  not  be  improper  to  introduce  a  few  observations  as  to  some 
particulars  which  are  peculiar  to  this  form  of  action. 

A  penalty  cannot  be  raised  by  implication,  but  must  be  ex- 
pressly created  and  imposed. 

If  a  person  has  a  right  to  sue  at  common  law,  and  a  remedy 
13  likewise  given  in  the  affirmative  by  statute,  without  a  negative 
express  or  implied  of  the  action  at  common  law,  he  may  avail 
himself  of  either  remedy ;  but  if  he  have  no  other  right  than 
what  is  derived  from  the  statute,  his  remedy  also  must  be  under 
the  statute. 

The  person  who  first  commences  a  quitam  action,  attaches  a 
right  in  himself  to  the  penalty,  which  cannot  be  devested  by  a 
subsequent  suit,  brought  by  any  other  common  informer,  though 
judgment  has  been  first  recovered  in  such  subsequent  suit,  and 
though  the  act  declare  that  a  recovery  for  the  penalty  shall  be  a 
bar  to  all  prosecutions  for  the  same  offence  ;  for  this  is  to  be 
construed  in  regard  to  a  recovery  in  the  suit  first  commenced. 

An  act  Avhich  gives  a  remedy  only  to  the  party  grieved,  is  not 
to  be  considered  as  a  penal  act. 

An  action  or  information  on  a  public  statute  need  not  recite 
the  statute  on  which  it  is  grounded,  whether  the  offence  be  such 
only  because  prohibited,  or  be  an  evil  in  its  own  nature,  and 
whether  it  be  prohibited  by  more  than  one  statute,  or  by  one 


H.«e.  Afcr.  «1. 


2  Johns.  Rep. 
380. 

Almyv.  Harrw, 
5  Johns. Rep.  175. 
Cora.     Dig.    Ac- 
tion upon  itatuie, 
(C.) 


Beadleston    T. 
Sprague,  6  Johns. 
Rep.  101. 


1  Bao.  Abr.  fl2. 
1  Bac.  Abr,  62. 


6  ACTIONS  QJJI  TAM. 

only.  But.  if  the  prosecutor  take  upon  him  to  recite  the  statute. 
and  materially  vary  from  a  substantial  part  thereof,  this  is  fatal, 
because  it  does  not  judicially  appear  to  the  court  that  there  is 
such  a  foundation  for  the  prosecution  as  that  whereon  it  is  ex- 
pressly grounded. 

Com.  Dip.  Action  yet  jf  an  action  lay  at  common  law,  as  well  as  by  the  statute, 
the  statute  ought  to  be  recited,  that  it  may  appear  whether  the 
action  he  upon  the  statute  or  by  common  law. 

R  Caines'  Rep.  The  act  to  redress  disorders  by  common  informers,  and  to  prevent 
malicious  informations,  (sess.  11.  c.  9.  1  R.  L.  99.)  does  not  ap- 
ply to  actions  before  a  justice. 

pay  T.  \viib*r.  2        If  the  process  be  in  the  name  of  the  plaintiff  only,  nnd  the 
ea.mv  Rep.  134.  Declaration  state  that  he  sues  as  well,  fcc.  the  variance  is  not 
material ;  but    at  all  events,  if   the   defendant  has  pleaded  in 
chief,  he  cannot  take  advantage  of  the  objection  on  cerliorari. 
Ha«bron<-k    v.         jn  a  gui  tam  action  in  a  justice's  court,  the  summons  stated 
Rep.  247.  that  the  defendant  was  to  answer  to  the  complaint  of  the  plain- 

tiff, in  behalf  of  himself  and  of  the  people  ;  but  it  also  added, 
"in  a  plea  of  debt,  to  his  damage  twenty -five  dollars  ;"  and  the 
declaration,  though  it  stated  preliminarily  that  the  plaintiff  com- 
plained as  well  for  himself  as  for  the  people,  yet  it  was  of  a 
plea  that  the  defendant  render  to  the  plaintiff  twenty-five  dol- 
lar?, which  from  him  he  unjustly  detained  ;  and  that  the  action 
had  accrued  to  the  plaintiff,  &c.  On  certiorari,  the  court  held 
that  the  formal  proceedings  were  substantially  correct. 

s  J°cainM'a'<Be°'       ^  's  'n  genera'  to  De  observed,  that  in  penal,  as  well  as  other 

152.  174.  187.   3  actions,  the  proceedings  in  justices'  courts,  as  far  as  respects  re- 

iohtjohme.P'Rti>.'  gularity  and  form,  will  be  reviewed  with  liberality,  and  technical 

104.  240.  nicety  or  legal  precision  are  not  required  in  the  pleadings,  hut. 

it   will   be   sufficient  if  there  appear  a  good  ground  of  action 

within  the  justice's  jurisdiction,  and  that  the  merits  of  the  cause 

have  been  tried. 

i  Bac.  Abr.  67.       Jn  a  qui  tarn  action,  the  proper  plea  is  nil  dclet,  that  the  dc- 

i    Johns.' 'case/,  fendant  owes  nothing  to  the  plaintiff  or  to  the  people  :  but  it 

R3    174  Caine*'  seems  that  a  plea  of  not  guilty  is  a  good  pica.     However,  it  has 

been  decided   that  the  joining  of  a  formal  issue  in  a  justice's 

court  is  not  material. 

€o!e  v.    Smith,       If  the  statute  gives  no  general  form  of  declaring  to  a  com- 

4  Johns.  Rep.193.  .     . 

mon  informer,  the  plaintiff  must  state  the  special  matter  upon 
which  his  cause  of  action  arises. 

i  jnhm.Rrp.  sis.  If  an  exception  or  proviso  in  a  penal  statute  forms  no  part  of 
4Joi.m.'Rep.304i  the  plaintiff's  title,  but  merely  matter  of  excuse  for  the  de- 
s  Joiins.  Rtp.  40.  fendanf,  it  is  not  necessary  for  the  plaintiff  in  his  declaration  to 

negati/e  the  exception  or  proviso. 

i  Rac.  Abr.  69.  An  informer  on  a  popular  statute  shall  in  no  case  whatsoever 
have  his  costs,  unless  they  be  expressly  given  him  by  such  sta- 
tute, for  the  common  law  gives  costs  in  no  cases  ;  but  wherever 
a  statute  gives  a  certain  penalty  to  a  party  grieved,  there  he  is 
entitled  to  costs. 


AFFIDAVIT.  7 

The  parties  to  a  quitam  action  may  lawfully  agree,  the  plain-  fiaskmi  v.  New- 
tiff  to  discontinue  the  suit,  and  the  defendant  to  pay  the  costs  ;  R^b'40f.  JyUns' 
for  discontinuing  is  not  compromising  or  compounding  a  popu- 
lar action,  and  is  not  an  offence  ;  neither  is  the  payment  of  coats 
by  the  defendant  a  composition. 

Where  a  statute  inflicts  a  penalty,  the   one.  moiety  whereof,  f,?*^6',1  v*  A,1,!eD' 

•Y  *  '10    Johns.    Ke[i. 

when  recovered,  to  be  disposed  of  in  a  particular  way,  and  the  us.    Bradway*. 
other  moiety  to  go  to  the  benefit  of  the  person  prosecuting  the  j^hn^tteu'/aii! 
same  to  effect,  a  payment  of  the  penalty  to  the  person  prose- 
cuting will   discharge   the  defendant;  but  the  plaintiff  has  no 
right  to  discharge  the  judgment  without  payment,  or  compound 
with  the  defendant  without  leave  of  the  court,* 


AFFIDAVIT. 

"  It  shall  be  lawful  fora  judge  of  the  supreme  court,  or  any 
magistrate  of  any  city  or  county  within  this  state,  upon  appli- 
cation by  or  in  behalf  of  either  of  the  parties  to  a  suit  depend- 
ing in  a  court  of  judicature  in  any  other  of  the  United  States, 
and  information  that  any  person  residing  within  the  county 
where  such  application  is  made,  is  a  material  witness  in  the  suit, 
to  issue  a  summons  to  such  person,  requiring  him  or  her  to  ap- 
pear and  make  affidavit  of  all  such  matters  and  things  as  he  or 
she  may  know  concerning  the  same,  and  to  transmit  the  affida- 
vit to  the  court  where  the  cause  is  depending,  in  such  manner 
as  the  practice  of  such  court  may  require  to  render  such  affida- 
vit legal  testimony."  Sess.  7.  c.  26.  s.  1.  1  R.  L.  49. 

';  Every  witness  who  shall  be  summoned  to  give  evidence  in 
manner  aforesaid,  shall  be  entitled  to  receive  from  the  party  at 
whose  instance  he  is  summoned,  four  shillings  for  every  day  of  his 
attendance  ;  and  no  witness  shall  be  bound  to  appear  except 
only  before  one  of  the  judges  or  magistrates  who  shall  be 
nearest  to  the  place  of  residence  of  such  witness."  (s.  2.) 

"  Whenever  any  person  shall  refuse  to  appear  and  make  affi- 
davit in  pursuance  of  such  summons,  a  warrant  shall  issue  from 
such  judge  or  magistrate  to  compel  his  appearance,  and  if  on  his 
appearance  he  shall  refuse  to  make  affidavit,  or  affirmation,  if  a. 
quaker,  of  the  fact  which  may  be  within  his  knowledge,  touch- 
ing the  matters  in  question,  he  shall  be  committed  to  the  con:- 


*  The  plaintiff  cannot  discharge  the  judgment  as  to  the  people's 
moiety  without  payment ;  and  if  the  defendant  in  a  qui  tarn  action 
have  hcen  taken  in  execution,  and  be  discharged  by  the  plaintiff  with- 
out satisfaction,  such  discharge  is  no  bar  to  an  action  for  uu  escape. 
M-n!«:t  v.  IVoudii'orth  and  Ftrt'.s,  11  Ji/ltns.  Rfp.  474. 


AFFRAY. 

mon  gaol  of  the  county,  there  to  remain,  without  bailor  maiu- 
prize,  for  the  term  of  six  calendar  months."    (s.  3.) 


AFFRAY. 

I.   What  is  an  affray. 
II.  How  far  it  may  be  suppressed  by  a  private  person. 

III.  How  far  by  a  constable. 

IV.  How  far  by  a  justice  of  the  peace. 

I.   Jfliat  is  an  affray. 

4  Black.  Com.  An  affray  is  the  fighting  of  two  or  more  persons  in  some  pub- 
«.  i.  2.  3  lint.'  lie  place  to  the  terror  of  the  people  ;  for  if  the  fighting  be  in 
private  it  is  not  an  affray,  but  an  assault ;  neither  will  threatening 
words  amount  to  an  affray,  although  it  seems  that  the  constable 
may,  at  the  request  of  the  party  threatened,  carry  the  person 
using  the  threats  before  a  justice  of  the  peace,  in  order  that  he 
may  find  sureties. 

£»5B1ieH  wk°m'  e  Pumshment  of  common  affrays  is  by  fine  and  imprison- 

«3.  i.  21.  3  liut.  rnent,   the  measure  of  which  inust  be  regulated  by  the  circum- 
ls3'  stances  of  the  case ;  for  where  there  is  any  material  aggravation, 

the  punishment  proportionably  increases.  As  where  two  per- 
sons coolly  and  deliberately  engage  in  a  duel ;  this  being  attend- 
ed with  an  apparent  intention  and  danger  of  murder,  and  being 
a  high  contempt  of  justice,  is  a  strong  aggravation  of  the  affray, 
though  no  mischief  has  actually  ensued. 

Hawk.  e.  63.  jj  js  likewise  said  to  be  an  affray,  at  common  law,  for  a  man  te 
arm  himself  with  dangerous  and  unusual  weapons,  in  such  man- 
ner as  will  naturally  cause  terror  to  the  people. 

II.  Hotcfar  it  may  be  suppressed  by  a  private  person. 

i  Hawk.  c.  63.  Any  one  who  sees  others  fighting  may  lawfully  part  them, 
and  also  stay  them  till  their  heat  be  over,  and  then  deliver  them 
to  the  constable,  who  may  carry  them  before  a  justice  of  th« 
peace,  in  order  to  their  finding  sureties  of  the  peace  :  also  it  is 
said  that  any  private  person  may  stop  those  whom  he  shall  sc«' 
coming  to  join  either  party.  If  the  person  endeavouring  to 
suppress  an  affray,  receive  an  injury  from  either  party,  he  may- 
have  his  action  against  him  ;  but  should  he,  unavoidably,  happeu 
to  hurt  either  party,  he  may  justify  it. 

i  Hawk.  c.  63.  So  if  either  party  be  dangerously  wounded  in  such  an  affray, 
and  a  stander-by,  endeavouring  to  arrest  the  other,  be  not  able 
to  take  him  without  hurting,  or  even  wounding  him,  yet  he  is  no 
way  liable  to  be  punished  for  the  same,  inasmuch  as  he  is  bound, 
under  pain  ef  fine  and  imprisonment,  to  arrest  such  an  eff» 


AFFRAY.  9 

ither. detain  him  till  it  appear  whether  the  party  will  live    PhilKoi T. Trull, 
or  <lie,  or  carry  him  before  i  justice  of  the  peace,  by  whom  he    436-Jums'  Rei>' 

to  be  bailed  or  committed.  But  no  private  person 
can  of  his  own  authority  arrest  another  for  a  breach  of  the  peace 
after  it  is  over. 

A  private  person  interposing  in  the  case  of  sudden  affrays,  to      i  Ea»f,  P.  c. 
part  the  combatants  or  prevent  mischief,  must  give  express  no-    3li't 
tice  of  his  friendly  intent,  and  should  he  be  assaulted  by  them  or 
either  of  them,  arid  in  the  struggle  should  happen  to  kill,   this 
will  be  justifiable  homicide  ;  for  it  is  the  duty  of  every  man  to 
interpose  in  such  cases,  for  preserving  the  public  peace,  and  pre- 
venting mischief.     On  the  other  hand,  if  the  party  so  interpos- 
ing, giving  such  notice,  should  be  killed  by  either  of  the  comba- 
tants, it  will  be  murder  in  the  person  so  killing. 

But  it  is  not  murder  in  both,  unless  both  struck  him   that      i  Hale,  P.  c. 
came  to  part  them.  442' 

When,  however,  the  third  person  does  not  show  his  intention      i  Hawk.e.  31. 
not  to  take  part  in  the  quarrel,  or  to  appease  it,  he  who  kills  him 
is  guilty  of  manslaughter  only,  for  he  might  suspect  that  he 
came  to  side  with  his  adversary. 

II.  How  far  by  a  constable. 

A  constable  is  not  only  empowered,  as  all  private  persons  are,     i  Hawk.  c.  63. 
to  part  an  afFray  which  happens  in  his  presence,  but  is  also  *' 
bound  at  his  peril  to  use  his  best  endeavours  to  this  purpose, 
and  not  orHy  to  do  his  utmost  himself,  but  also  to  demand  the 
assistance  of  others,  which  if  they  refuse  to  give  hirn  they  are 
punishable  with  fine  and  imprisonment.     And  if  an  affray  be  in 
a  house,  the  constable  may  break  open  the  doors  to  preserve 
the  peace ;  and  if  the  affrayers  fly  to  a  house,  and  he  follow 
with  fresh  suit,  he  may  break  open  the  doors  to  take  them. 

It  is  said  that  if  a  constable  see  persons  either  actually  en-     i  Hawk,  c,  03. 
gaged  in  an  affray,  as  by  striking,  or  offering  to  strike,  or  draw-  *' u* 
ing  their  weapons,  or  upon  the  very  point  of  entering  upon  an 
affray,  as  where  one  shall  threaten    to    kill,   wound,   or  beat 
another,  he  may  either  carry  the  offender  before  a  justice  of 
the   peace  that  he  may  be  compelled  to  find  sureties  of  the 
peace,  or  he  may  imprison  him  of  his  own  authority  for  a  rea- 
sonable time,  until  his  heat  shall  be  over ;  but  whether  he  can 
make  him  find  sureties  of  the  peace  appears  to  be  doubtful:      4  Black.  Com, 
but  it  seems  that  he  has  no  power  to  imprison  such  an  offender  c^aos!  Kast)l>' 
in  any  other  manner,  or  for  any  other  purpose  ;  for  he  cannot 
justify  the  committing  an  affrayer  to  gaol  till  he  shall  be  punish- 
ed for  his  offence  :  and  it  is  said  that  he  ought  not  to  lay  hands 
on  those  who  barely  contend  with  hot    words,   without    any 
threats  of  personal  hurt,  and  that  all  he  can  do  in  such  case, 
is  to  command  them  under  pain  of  imprisonment  to    aroid 
fight  irij. 

t  2] 


10  AFFRAY. 

i  Ha\vk.c.63.j.  But  he  is  so  far  intrusted  with  a  power  over  all  actual  affrays, 
that  though  he  himself  is  a  sufferer  by  them,  and  therefore  lia- 
ble to  be  objected  against,  as  likely  to  be  partial  in  his  own 
cause,  yet  he  may  suppress  them;  and  therefore  if  an  assault 
be  made  upon  him,  he  may  not  only  defend  himself,  but  also 
imprison  the  offender,  in  the  same  manner  as  if  he  were  no  way 
a  party. 

1  East,p. c.305,       The  better  opinion  seems  to  be,  that  a  constable  or  other 
636"*1//**1*  C    Peace  officer  is  not   warranted  in  arresting  one  upon  a  charge 

2  Hawk.c. i3.i.  by  another  of  a  mere  breach  of  the.  peace  after  the  affray  is 

ended  and  the  peace  restored,  without  a  special  warrant  from  a 
magistrate;  for  it  is  his  business  to  preserve  the  peace  and  not 
to  punish  the  breach  of  it,  so  that  he  can  neither  imprison  the 
party,  or  compel  him  to  find  sureties,  admitting  that  he  might 
do  so  in  the  case  in  his  own  presence.  Yet  Lord  Hale,  '2  P. 
C.  90.  and  some  later  authorities,  have  holden  that  he  may 
arrest  the  party  upon  the  charge  of  another,  though  the  affray 
be  over,  for  the  purpose  of  bringing  him  before  a  justice  to  find 
sureties,  or  for  appearance.  But  where  time  and  circumstances 
will  admit  of  it,  the  better  way  is  to  apply  to  a  magistrate  for  a 
warrant. 

i  Hale,  p.  c.       It  seems  clear,  however,  that  if  one  menace  another  to  kill 

c!93oe!  ^  '  him,  upon  complaint  thereof  to  the  constable  forthwith,  he  may, 
in  order  to  avoid  the  present  danger,  arrest  the  party,  and  detain 
him  till  he  can  conveniently  bring  him  to  a  justice  of  the  peace. 

2Esp. 540.  So  if  a  dangerous  wound  has  been  given  which  is  likely  to 

ensue  in  felony,  a  constable  may  take  the  person  giving  it  into 
custody. 

i  Hawk. c.  63. s.  A  constable  may,  however,  carry  those  before  a  justice  of 
the  peace,  who  were  arrested  by  such  as  were  present  at  an 
affray,  and  delivered  by  them  into  his  hands. 

i  F.ast.p.c.3P3.  |f  tne  constable,  or  any  of  his  associates,  whether  commanded 
or  not,  be  killed,  it  will  be  murder.  But  in  order  to  aggravate 
the  offence  to  this  degree,  the  parties  concerned  must  have 
had  some  notice  with  what  intent  he  interposed  :  otherwise  the 
parties  engaged  may  in  the  heat  and  bustle  of  an  affray  imagine 
that  he  came  to  take  a  part  in  it.  But  in  these  cases  a  small 
matter  will  amount  to  a  due  notification.  It  is  sufficient  if  the 
peace  be  commanded,  or  the  officer  in  any  other  manner  declare 
with  what  intent  he  interposes.  Or  if  the  officer  he  within  his 
proper  district,  and  known,*  or  but  generally  acknowledged  to 
bear  the  office  he  assumes,  the  law  will  presume,  that  the  party 
killing  had  due  notice  of  his  intent,  especially  if  it  be  in  the  dny 


*  In  the  case  of  all  peace  officers,  justices  of  the  peace,  constable*. 
&:c.  it  is  sufficient  to  prove  that  they  acted  in  those  characters,  without 
producing  their  appointments,  and  thai  even  iu  the  case  of  murder,  i 
Term  Rep.  S66.  3  Jdms.  Rep.  431. 


APPEAL. 


11 


time.  In  the  night  some  farther  notification  is  necessary,  and 
commanding  the  peace,  or  using  words  of  the  like  import,  noti- 
fying his  business,  will  be  bullicient. 

Killing  the  officer  will,  in  such  case,  be  murder,  not  only  in  i  East, P.O. 315. 
the  person  committing  the  act,  Fmt  in  all  the  other  persons  en- 
gaged in  the  affray,  who  had  the  notice  just  spoken  of,  and 
abetted  him  in  the  fact;  but  where  they  have  not  notice,  it  will 
only  be  manslaughter,  and  where  they  neither  have  notice  nor 
abet,  they  will  not  even  be  guilty  of  manslaughter.  But  if  the 
affray  had  been  deliberately  engaged  in,  if  the  parties  had 
engaged  to  a  common  cause  and  to  maintain  it  by  force,  and  the 
constable  or  any  other  person  opposing  them  in  it  had  beeu 
killed,  it  would  have  been  murder  in  all. 

IV.  How  far  by  a  justice  of  the  peace. 

A  justice  of  the  peace  may  and  must  do  all  such  things  for  the  '  Hawk. c.  63.*. 
purpose  of  suppressing  an  affray,  which  a  private  man  or  con- 
stable are  either  enabled  or  required  by  law  to  do  :  but  it  is  said 
that  he  cannot,  without  a  warrant,  authorize  the  arrest  of  any 
person  for  any  affray  out  of  his  view  ;  yet  in  such  case  he  may 
make  his  warrant  to  bring  the  offender  before  him,  in  order  to 
compel  him  to  find  sureties  of  the  peace. 

Where  one  person  has  dangerously  wounded  another  in  an  1  Hawk. c.  6-3. ». 
affray,  the  justice  has  a  discretionary  power  either  to  commit 
him  or  bail  him  till  the  year  and  day  be  passed  ;  but  it  is  said, 
that  he  ought  to  be  very  cautious  how  he  takes  bail  if  the  wound 
be  dangerous  ;  for  if  the  party  die  and  the  offender  appear  not,  he 
is  in  danger  of  being  severely  fined,  if  he  shall  appear,  upon  the 
whole  circumstances  of  the  case,  to  have  been  too  favourable. 


APPEAL. 

An  appeal  is  the  removal  of  a  cause  from  an  inferior  court  or   i  Bum's  Just.ss. 
judge  to  a  superior ;  as  from  one  or  more  justices  to  the  quarter 
sessions. 

It  also  signifies  an  accusation  by  a  private  subject  against  4BLCom.3i2- 
another  for  some  heinous  crime;  demanding  punishment  on 
account  of  the  particular  injury  suffered,  rather  than  for  the 
offence  against  the  public.  This  mode  of  prosecution  has 
become  obsolete  in  England,  and,  in  this  state,  has  been  ex- 
pressly abolished.  Under  this  title  appeals  will  be  considered 
only  as  far  as  they  relate  to  the  removal  of  un  order  of  justices 
to  the  sessions. 

'•Upon  appeals  to  the  courts  of  general  sessions  of  the  peace 
against  any  judgment  or  order  of  any  justice  of  the  peace,  the 
said  courts  shall  cause  all  defects  of  form  to  bo  found  in  such 


12  APPEAL. 

judgment  or  order,  to  he:  amc-mlcd  without  any  costs  to  thr  par, 
ties  concerned  •  and  after  such  amendment  made,  shall  proceed 
to  hear  the  merits  of  such  judgment  or  order,  upon  due  proof, 
by  witiieshrs  or  otherwise,  and  to  determine  upon  the  same  aa 
if  no  &ucli  defect  of  form  had  existed."  Sess.  3tJ.  c.  Ib.  s.  5.  '2 
Jl.  L.  151.* 

Swi-ct  v.  Over-  This  cause  came  before  the  court  on  a  return  to  a  ccrtiorari 
sj'oLiw  (Kep.0"1  from  tnc-  court  of  general  sessions  in  Dutchess  county.  An  appeal 
J3.  had  been  made  to  the  sessions,  from  an  order  of  bastardy  made 

by  two  justices  of  the  peace.  Upon  the  traverse  to  the  appeal, 
U  «ras  contended  on  the  part  of  the  appellant,  that  the  overseers 
ought  to  proceed  to  establish  the  order  by  proof;  that  the  sub- 
ject ought  to  be  examined  in  the  same  manner  as  it  had  been 
before  the  justices  who  granted  the  order.  The  court  of  ses- 
sions determined  that  the  order  was  prima  facie  evidence  of  the 
facts  contained  therein  ;  and  that  it  was  incumbent  on  the  appel- 
lant to  prove  that  the  facts  set  forth  in  the  order  were  not  true. 
The  sessions  having  confirmed  the  order  of  the  justices,  the  ap- 
pellant tendered  a  bill  of  exceptions  which  was  seated  by  the 
justices  of  the  sessions,  and  returned  with  the  order  and  other 
proceedings,  annexed  to  the  certiorqri,  to  this  court. 

THOMPSON,  J.  delivered  the  opinion  of  the  court.  This  case 
is  brought  up  by  certiorari  from  the  court  of  sessions  in  Dutchess 
county.  It  came  before  the  sessions  by  appeal,  on  an  order  of 
bastardy,  made  by  two  justices  of  the  peace,  and  the  question 
presented  to  this  court  is,  whether,  on  such  appeal,  the  order 
of  the  justices  ought  to  have  been  received  by  the  sessions  as 
prima  facie  evidence,  and  to  be  impeached  by  the  appellant,  or 
whether  the  sessions  are  to  take  up  the  examination  de  novo,  as 
if  no  order  had  been  made.  We  have  not  been  able,  from  an 
examination  of  the  cases  cited  on  the  argument,  to  find  that  the 
question  has  ever  received  any  judicial  determination,  or  to 
ascertain  what  the  practice  has  been.  We  are  inclined,  how- 
ever, on  general  principles,  to  think  that  the  order  ought  to  be 
received  .is  prima  facie  evidence,  and  the  onus  of  impeaching  it 
thrown  on  the  appellant.  This  order  was  the  judgment  of 
magistrates,  having  jurisdiction  of  the  subject  matter.  It  is  final 
and  conclusive  upon  the  party,  unless  reversed  upon  appeal,  and 
no  appeal  lies  to  take  the  case  from  the  magistrates,  until  they 
have  passed  judgment  upon  it.  The  appeal  is  for  the  purpose 
of  revising  and  correcting  the  errors  of  the  magistrates,  and  their 
judgment  ought  to  be  deemed  valid,  until  some  ground  for  re- 


*  The  court  will  in  general,  in  cases  of  orders,  presume  in  their 
favour,  that  omnia  rile  acta ;  ami  herein  they  differ  from  convic- 

tions, i  Str.i.  9  6.    1      m-:.  &M:;U!.  :il3.  n.  1.     Every  intendzucnt  shall 
1)0  made  in  their  favour.  3  Eat!,  53. 


APPRENTICES.  13 

v,criing  it  be  shown.  A  question  was  also  made  on  the  argument, 
whether  a  bill  of  exceptions  would  lie  to  a  court  of  sessions.  It 
appears  to  be  pretty  well  settled,  by  the  cases  in  the  books,  that 
it  will  not.  in  those  summary  proceedings,  the  sessions  are 
judges  both  of  law  and  fact,  and  it  would  seem  to  be  the  inten- 
tion of  the  statutes,  instituting  these  proceedings,  that  what  the 
justices  do  shall  be  final  as  to  facts,  and  every  thing  but  the  law 
arising  therefrom.  If  the  sessions  do  not  return  to  the  certiorari 
all  the-  facts  which  were  before  them,  and  which  are  necessary  to 
appear  in  order  to  judge  of  the  law  applicable  to  the  case,  the 
practice  I  apprehend  to  be,  for  this  court  to  order  the  session* 
to  return  such  facts.  The  order  of  the  sessions  must  be 
affirmed. 

But  it  is  now  settled  by  an  act  of  the  legislature,  that  in  th« 
particular  case  of  an  appeal  from  an  order  of  bastardy,  the  ses- 
sions must  take  up  the  examination  de  novo,  and  require  the 
party  in  whose  favour  the  order  was  made  to  substantiate  it, 
except  in  the  case  of  the  death  of  the  mother  of  the  bastard. 
Bastard,  IV. 

But  in  other  instances  of  appeals,  the  above  case  may  be  con- 
sidered as  an  authority. 

The  sesions  is  alias  one  day,  so  that  if  the  justices  have  made  3  Salk.  494.  f,c*. 
an  order  on  an  appeal  to  them,  they  may,  during  the  same  ses- 
sions, vacate  it  and  make  another  order. 

With  respect  to  the  proceedings  on  appeals  in  particlar  cases, 
I  must  refer  to  the  several  titles  of  this  digest  under  which  they 
*re  considered. 


APPRENTICES. 

Apprentices  are  a  species  of  servants  who  are  usually  bound  1  El.  Com.42e. 
fi>r  a  term  of  years,  by  deed  indented,  or  indentures,  to  serve 
their  masters,  and  to  be  maintained  and  instructed  by  them. 

I.  How  apprentices  are  to  be  bound. 

II.  Binding  of  poor  apprentices. 

III.  Differences  betiveen  master  and  apprentice. 

IV.  Hoic  an  apprenticeship  is  determined. 
V.  Other  particulars  relating  to  apprentices. 

I.  Hoiv  apprentices  are  to  be  bound. 

"  Every  person  bound  by  indenture  of  his  or  her  own  free  will, 
»nd  with  the  consent  of  his  or  her  father,  or  if  he  be  dead,  of 
the  mother  or  guardian,  and  to  be  expressed  in  such  indenture, 
and  signified  by  such  parent  or  guardian  sealing  and  signing  the 
same  indenture,  and  not  otherwise,  or  by  the  justices  and  over- 


|4  APPRENTICES. 

seers  or'  the  poor,  as  herein  after  directed,  to  serve  as  clerk 
apprentice,  or  servant,  in  any  profession,  trade,  or  employment,, 
unli!  the  ago  of  twenty-one  years,  or  fon  any  shorter  tin:e. 
although  such  clerk,  apprentice,  or  servant,  shall  be  within  the 
age  of  twenty-one  years  at  the  making  of  such  indenture,  shall- 
be  botmden  to  serve  for  the  term  in  the  indenture  specified,  as 
i'liUy  as  if  the  same  clerk,  apprentice,  or  servant,  was  of  full  age 
at  the  making  of  the  same.  Provided  always,  that  any  child  of 
any  Indian  woman  shall  not  be  so  bound  except  in  the  presence 
and  with  the  consent  of  a  justice  of  the  peace,  a  certificate  of 
such  consent  being  also  signed  by  the  justice,  and  filed  with  the 
clerk  of  the  town  in  which  such  indenture  shall  be  executed. 
Jtnd  provided  further,  that  it  shall  be  lawful  for  any  male  infant^ 
under  the  age  of  twenty-one  years,  or  any  female  infant,  under 
the-  age  of  eighteen  years,  and  who  shall  have  no  parent  living, 
nor  any  guardian,  by  and  with  the  approbation  of  the  overseers 
e»f  tb_e  poor  of  the  town,  or  of  any  two  justices  of  the  peace,  or 
ot'any  judge  of  the  court  of  common  pleas  of  the  county  where 
Sruch  infant  shall  reside,  to  bind  himself  or  herself  an  apprentice 
as,  aforesaid,  until  such  infant,  if  a  male,  shall  arrive  to  the  age  of 
twenty-one  years,  and  if  a  female,  to  the  age  of  eighteen  years  ; 
•which  approbation  shall  be  indorsed  on  the  indenture,  and  every 
suueh  indenture  shall  be  valid  and  binding."  Sess.  21-.  c.  M.  s.. 
2.  1  R.  L.  13o. 

"When  the  father  of  any  child  is  not  in  legal  capacity  to  give 
the  consent  aforesaid,  the  mother  of  such  child  shall  have  the 
same  power  to  give  such  consent  as  if  the  father  was  dead." 
s.  2. 

"The  executor  or  executors,  who  are  or  shall  be  by  the  last 
tvitt  and  testament  of  a  father  directed  to  bring  up  his  child  or 
children  to  some  trade  or  calling,  such  executor  or  executors  are 
hereby  empowered  to  bind  such  child  or  children  by  indenture, 
in  like  manner  as  the  father  might  by  law  have  done,  if  living, 
any  thing  in  this  act  to  the  contrary  in  anywise  notwithstand- 
ing." s.  14. 

4a,ai&,6».  An.  apprentice  cannot  be  bound  without  deed,  and  by  the  pro- 

viso in  the  seventh  section  of  the  act  concerning  apprentices 
and  servants,  no  deed  or  contract  for  binding  any  person  as 
clevk,  apprentice,  or  servant,  shall  be  void  for  not  being  indented 
only. 

Writs  of  habeas  corpus  hud  been  awarded  to  JVizwan  Spier  to 
bring  up  the  body  of  Hugh  M'Dou-lc,  ;u.d  to  .\"athan  Slosaon  to 
bring  up  the  body  of  John  M'Doxle.  The  return  by  Mtihan  Spies 
stated,  that  on  the  3d  of  Mai/,  1 80S,  .Matthew  M-Doitie,  father 
of  the  infant,  sealed  and  delivered  to  him  an  indenture,  which 
•wns  set  forth,  by  which  he  bound  his  son  Hugh,  then  six  years 
of  age,  to  Spier,  a  member  of  the  society  called  shakers,  to  be 
by  him  fed,  &tc.  taught,  Jk.c.  until  the  age  of  twenty-one.  If  the 
Uoy  inclined  to  depart,  before,  the  father  agreed  to  take  him 


APPRENTICES.  15 

awny,  on  being  duly  notified,  Jcc.  The  indentures  were  f-\r- 
r.uN-d  by  Spier,  and  the  father  of  the  infant.  The  return  furllx.-r 
stated,  that  the  infant  has  never  manifested  any  desire  to  -depart, 
but  an  inclination  to  stay,  though  on  the  2Uth  of  Derrmber  lasl, 
the  father  of  James  M'Dotcle  had  fraudulently  and  forcibly  taken 
away  the  hoy  and  kept  him  six  weeks;  that  he,  Spier,  had  per- 
formed the  covenants  in  the  indenture  on  his  part,  and  was 
willing  to  perform,  &c.  The  return  to  the  other  writ  was  simi- 
lar. A  petition  Avas  also  presented,  signed  hy  the  infants,  otie 
being  1  1  and  the.  other  8  years  old,  praying  that  they  might, 
now  he  permitted  to  execute  the  indentures. 

Per  Curiam.  Two  objections  are  taken  to  the  validity  of  the. 
indenture  stated  in  the  return;  1.  That  it  is  not  executed  by 
the  infant;  2.  That  the  word  "apprentice"  is  not  inserted  in 
the  deed.  The  first  objection  is  founded  on  the  words  of  lh*«. 
statute  which  evidently  requires  the  deed  to  be  executed  by 
the  infant,  as  well  as  by  his  parent  or  guardian.  At  common 
law,  a  parent  may  bind  his  infant  an  apprentice,  but  the  statat" 
must  be  considered  as  controlling  the  common  law  in  thi-~ 
respect,  and  as  requiring  the  infant  to  be  a  party  to  the  dee<l. 
The  infant  in  the  present  case  is  not  therefore  hound,  and  th« 
question  is  as  to  the  r-.-lief  which  ought  to  be  granted  upon  th« 
present  writ.  The  father  who,  on  his  part,  executed  the  inden- 
ture with  the  master,  sues  out  the  writ.  There  is  nothing  before 
the  court  to  show  any  improper  treatment  of  the  infant,  nor  that. 
the  party  to  whom  the  father  intended  to  bind  him  has  not 
hitherto  faithfully  performed  the  stipulations  in  the  indenture. 
This  is  not  a  case  then,  in  which  the  father  has  any  equity,  or 
any  right  to  complain.  He  may  be  bound  still  by  ihe  covenants 
in  the  indenture,  though  the  infant  is  not.  It  is  for  the  infant 
alone  to  take  advantage  of  the  defect,  and  if  he  does  not  choose 
to  do  it,  he  may  waive  the  defect,  and  avail  himself  of  the  bene- 
fit of  the  apprenticeship.  All  that  the  court  are  required  to  do 
under  the  present  writ,  is  to  see  that  the  infant  is  not  restrained 
against  his  will.  In  the  present  case,  then,  the  court  can  only 
declare,  that  the  infants  are  at  liberty  to  go  where  they  plea?e. 
They  may  go  and  put  themselves  under  the  care  and  protection 
of  their  father,  or  they  may  return  to  the  service  of  their  master. 

The  words  in  the  second  section  of  the  statute,  viz.  that  the  4  Bac.  Abr.  565, 
apprentice,  although  withint  he  age  of  twenty-one  years,  shall 
be  bounden  to  serve  for  the  term  specified,  as  fully  as  if  he  was 
of  full  age  at  the  making  of  the  same,  do  not  extend  to  making 
the  infant  liable  to  an  action  of  covenant  or  other  action  for 
departing  from  the  service  of  his  master,  as  for  other  breaches  of 
his  indentures.  The  act  merely  takes  away  from  the  infant  the 
power  of  vacating  the  indenture,  which  he  had  at  common  law. 

The  act  speaks  only  of  a  binding  until  the  age  of  twenty-one  5  T<<rm  Rep. 
years,  or  fur  any  shorter  time  ;  consequently,  if  tLe  binding  is  J0*4-   c«iJet°it 


1C  APPRENTICES. 

for  a  longer  period,  the  infant  on  coming  of  ago  may  elect  <». 
avoid  the  indentures ;  with  this  exception,  however,  that  when 
he  is  before  a  magistrate,  charged  with  any  misbehaviour  undef 
the  indenture,  that  is  not  the  time  to  avoid  it. 

M<-;uiv.  Killings,       Where,  in  an  indenture  of  apprenticeship,  it  was  stated  that 
10  Jolnw.  Hep.    tne  apprentice  bound  himself  with  the  consent  of  his  father,  and 
the  father  actually  signed  and  sealed  the  indenture  with  the 
son,  though   the   father  was  not  named  in  the  indenture  as  a 
party,  it  was   held  that  the  father  was  bound  for  the  son,  and 
responsible  to  the  master  in  case  the  apprentice  left  his  service, 
before  the  expiration  of  the  term  fixed  by  the  indenture. 
»  Term  Uep.          An  indenture  of  apprenticeship  may  be  formed  without  using 
s£*n,208.          *ne  word  apprentice.     It  is  enough   if  the  purpose  of  the  con- 
tract be,  that  the  one  shall  teach  and  the  other  learn  the  trade. 
No  technical  words  are  necessary  to  constitute  the  relation  of 
master  and  apprentice,  nor  is  it  necessary  that  there  should  be 
any  premium  given  to  the  master. 

But  when  a  premium  is  paid,  or  agreed  to  be  paid,  or  agreed 
for,  with  or  in  relation  to  every  clerk  or  apprentice  so  to  be 
bound  out  as  aforesaid,  to  learn  a«y  profession,  trade,  or  employ- 
ment, the  sum  shall  be  inserted  in  the  indentures  to  be  executed 
as  aforesaid;  and  every  indenture  or  contract  for  taking  of  any 
clerk  or  apprentice,  other  than  is  by  this  act  regulated,  shall  be 
void  as  against  such  clerk  or  apprentice  only.  Sess.  24-.  c.  II. 
s.  7.  1  R.  L.  137. 

"No  deed  or  contract  for  binding  any  person  as  cierk,  fcc. 
shall  be  void  for  not  being  indented  only."  Ibid. 

"To  the  end  that  the  time  of  the  continuance  of  the  service 
of  such  apprentice  or  servant  may  the  more  plainly  and  cer- 
tainly appear,  the  age  of  such  infant  so  to  be  bound  apprentice 
or  servant,  shall  be  inserted  ia  his  or  her  indentures."  s.  6. 

"  And  the  age  of  such  infant  so  inserted  in  the  said  inden- 
tures, (in  relation  to  the  continuance  of  his  or  her  service,)  shall 
he  taken  to  be  his  or  her  true  age,  without  any  further  proof 
thereof."  Ibid. 

-,   Burn's  Just.        Though  the  indentures  are  not  executed  by  the  master,  it 
76'77-  makes  no  difference  if  the  apprentice  himself  be  bound.     So,  a 

counterpart  seems  unnecessary  to  the  validity  of  the  indenture. 
4  Bao.  Abr.  5si.  An  agreement  to  execute  indentures  of  apprenticeship  will  not 
277. 230.  constitute  a  sufficient  binding  ;  and  of  course,  where  there  is  nei- 

ther indenture  or  agreement,  but  only  a  binding  by  parol,  there 
can  be  no  apprenticeship.  An  indenture,  however,  though  lost, 
shall  be  sufficient  on  proof  being  made  that  it  was  duly  executed  ; 
but  a  declaration  of  the  mother,  that  she  heard  the  apprentice's 
father  say  he  w  as  bound  by  indenture,  is  not  sufficient  evidence 
of  the  fact. 

j95reri"  Rel>>          An  indenture  of  apprenticeship  to  an  infant  is  not  void,  but 
only  voidable. 


APPRENTICES.  17 

II.  Binding  of  poor  apprentices. 

"  It  shall  be  lawful  for  the  overseers  of  the  poor  of  any  city 
ov  town  within  this  state,  by  and  with  the  consent  of  the  justices 
of  the  peace  of  the  same  county,  or  any  two  of  them,  residing 
in  or  near  such  town,  or  in  the  cities  of  New-York,  fee.  by  and 
•with  the  consent  of  the  mayor,  &tc.  to  bind  out  any  child  who  ia 
or  shall  be  chargeable,  or  whose  parents  are  or  shall  become 
chargeable,  to  the  city  or  town  wherein  they  respectively  in- 
habit, or  who  shall  beg  for  alms,  to  be  apprentices  or  servants, 
according  to  their  degree  and  ability,  where  tkey  shall  see  con- 
venient, until  such  child  or  children,  if  male,  shall  respectively 
arrive  or  come  to  the  age  of  twenty-one  years,  and  if  female,  to 
the  age  of  eighteen  years ;  and  the  indentures  or  articles  of 
agreement  for  binding  any  such  infant  shall  be  as  effectual,  to 
all  intents  and  purposes,  as  if  such  infant  were  of  full  age,  and 
by  indenture  of  covenant  bound  him  or  herself:  And  the  coun- 
terpart of  such  indenture  or  articles  for  the  benefit  of  the  person 
so  bound,  shall  be  deposited  with  the  clerk  of  the  city  or  town 
in  which  such  binding  shall  take  place,  for  safe  keeping."  Sess. 
24.  c.  11.  s.  5.  1  R.L.  136. 

When  an  act  which  is  to  be  done  by  the  consent  of  two  jus-  R.  v.  Ham»ai!4 
tices  »s  merely  ministerial,  they  may  give  their  consent  sepa-  3go,erm 
rately  ;  but  when  it  is  judicial,  they  must  confer  together,  and 
form  a  joint  opinion.  The  act  to  be  done  by  two  magistrates 
in  this  case  is  purely  of  a  judicial  nature.  Per  KENTOW,  Ch.  J. 
The  legislature  intended  that  the  magistrates  should  have  a 
check  and  controul  over  the  parish  officers  (the  overseers)  in 
this  instance ;  and,  in  my  mind,  they  are  calledjupon  to  examine, 
with  the  most  minute  and  anxious  attention,  the  situations  of  the 
masters  to  whom  the  apprentices  are  to  be  bound,  and  to  ex- 
ercise their  judgment  solemnly  and  soberly  before  they  allow 
or  disallow  the  act  of  the  parish  officers  ;  for  which  purpose  it 
is  necessary  that  they  should  confer  together.  ASHHURST,  J. 
The  act  of  the  justices  in  this  case  is  in  its  nature  an  act  of  judg- 
ment. They  are  the  guardians  of  the  morals  of  the  people, 
and  ought  to  take  care  that  the  apprentices  are  not  placed  with 
masters  who  may  corrupt  their  morals.  The  justices,  therefore, 
should  inquire  particularly  whether  or  not  they  ought  to  allow 
the  binding  by  the  parish  officers  ;  and  I  think  they  would  be 
guilty  of  a  breach  of  duty,  if  they  implicitly  gave  their  assent 
without  examining  into  the  circumstances  of  the  case. 

The  assent  of  two  magistrates  to  an  indenture  is  sufficiently 
signified  by  one  of  them  signing  it  alone,  and  being  afterwards 
present  when  the  other  signs  it. 

"  In  all  indentures  and  contracts  to  be  made  by  any  overseers 
of  the  poor  of  any  city  or  town,  by  and  with  the  consent  of  the 
justices  of  the  peace  of  the  county,  yr  any  two  of  them,  or  by 

[  3  } 


jtf  APPRENTICES. 

and  with  the  couseat  of  the  mayor,  kc.  for  binding  or  pi;' 
out  any  child  as  rai  apprentice  or  servant,  shall,  among  the  cove- 
nants in  such  indentures  or  contracts  to  be  made  and  agreed 
upon  between  the  parties,  always  be  inserted  a  clause  to  the 
following  efiect :  That  every  master  or  mistress  to  whom  such 
child  shall  be  bound  as  aforesaid,  shall  cause  such  child  to  be 
taught  and  instructed  to  read  and  write,  and  shall  also  give  unt<» 
such  child  a  new  bible,  at  the  expiration  of  his  or  her  term  ol" 
service."  p.  24-.  c.  1 1.  s.  5.  1  R.  L,.  136. 

';  The  overseers  of  the  poor  of  each  respective  city  and  town 
khall  be  the  guardians  of  every  such  child  so  put  and  bound  eut 
as  aforesaid,  to  take  care  that  the  terms  of  the  indentures  or 
contract,  and  the  agreements  therein  contained,  be  fulfilled,  and, 
that  such  child  be  not  111  used  ;  and  the  said  overseers  of  the 
poor  are  hereby  directed  to  inquire  into  the  saiae,  and  to  re- 
dress any  grievance  in  such  manner  as  is  prescribed  by  law." 
Ibid. 

"  If  any  person,  who  shall  be  bound  as  aforesaid,  shall  refuse  to 
serve  as  an  apprentice  or  servant,  according  to  the  terms  of  the 
indenture  made  as  aforesaid,  then,  upon  complaint  of  the  mas- 
ter or  mistress  to  whom  such  apprentice,  kc.  shall  be  so  bound, 
to  any  justice  of  the  peace  of  the  county  wherein  the  said  re- 
fusal shall  be  made,  or  to  the  mayor,  kc.  they  and  each  of  them 
shall  have  full  power  and  authority  by  this  act,  by  warrant  un- 
der hand  and  seal,  or  otherwise,  to  send  for  the  same  person  so 
refusing,  and  if  the  said  person  refuse  to  serve  .15  an  apprentice 
or  servant,  to  commit  him  or  her  untoward  in  the  bridewell  or 
house  of  correction,  if  any  there  be,  or  if  there  be  nobriJeweil 
or  house  of  correction,  in  the  gaol  of  the  city  or  county  wherein 
such  refusal  shall  take  place,  there  to  remain  until  he  or  she  be 
contented,  and  will  serve  as  an  apprentice  or  servant,  according 
to  the  intent  and  meaning  of  this  act."  s.  6. 

"The  same  justices,  kc.  shall,  as  fully  as  they  can, inform 
themselves  of  such  infant's  age,  and  from  such  information  shall 
insert  the  same  in  the  said  indentures  ;  and  the  age  of  such  in- 
fant so  inserted  (in  relation  to  the  continuance  of  his  or  hr-r 
vice)  shall  be  taken  to  be  his  or  her  true  age,  without  any  fur- 
ther proof  thereof."  Hid. 

III.  Difertncts  between  master  and  apprentice. 

.  j.    "jffl,  423.        A  master  may  by  la\v  correct  his  apprentice  for  negligence  or 
other  misbehaviour,  so  it  be  done  with  moderation. 

When  differences  arise  between  master  and  apprentice,  tw* 
different  modes  of  proceeding  are  pointed  out  by  the  act :  1 . 
By  application  to  a  single  magistrate.  2.  By  application  to  three 
magistrates  ;  each  of  which  I  shall  consider  in  order. 

First:  by  application  to  a  single  magistrate.  It  is  enacted. 
"\*.\. ';  M  any  master  o:  iclitzess  shall  be  guilty  of  any  mis-- 


APPRENTICES.  10 

•refusal  of  necessary  provisions  or  cloathing,  cruelty,  or  other  ill 
treatment,  so  that  his  or  her  clerk,  apprentice,  or  servant,  shall 
have  any  just  cause  to  complain,  or  the  said  clerk,  apprentice, 
or  servant  be  guilty  of  any  misdemeanour,  miscarriage,  or  ill  be- 
haviour, or  do  not  perform  his  or  her  duty  to  his  or  her  master 
or  mistress,  then  the  said  master  or  mistress,  or  the  said  clerk, 
apprentice,  or  servant,  being  aggrieved,  and  having  just  cause  of 
complaint,  shall  repair  to  any  justice  of  the  peace  within  the 
county,  or  to  the  mayor,  fee.  where  the  said  master  or  mistress, 
dwelleth,  who  shall  take  such  order  and  direction  between  the 
said  master  or  mistress,  and  his  or  her  clerk,  apprentice,  or  ser- 
vant, as  the  equity  of  the  case  shall  require.  And  if  the  said 
justice  of  the  peace,  or  mayor,  recorder,  or  alderman,  cannot 
compound  or  agree  the  matter  between  such  master  or  mistress 
and  his  or  her  clerk,  apprentice,  or  servant,  then  the  said  justice, 
or  the  said  mayor,  recorder,  or  alderman,  shall  take  a  recogni- 
zance of  the  said  master  or  mistress,  in  such  sum  as  he  shall 
think  proper,  to  appear  at  the  next  general  sessions  of  the  peace, 
to  be,  holden  in  the  said  city  or  county,  and  upon  his  or  her  appear- 
ance and  hearing  of  the  matter  befwe-the  said  court  of  general 
sessions  of  the  peace,  the  said  court  may,  in  their  discretion,  by 
rule  or  order,  discharge  the  said  clerk,  apprentice,  or  servant,  of 
his  or  her  clerkship,  apprenticeship,  or  service,  and  order  all  such 
part  of  such  sum  and  sums  of  money  as  shall  have  been  paid  or 
agreed  for,  with  or  in  relation  to  every  such  clerk,  apprentice, 
or  servant,  as  they  shall  judge  proper,  to  be  refunded  to  the  per- 
son who  paid  the  same,  his  or  her  executors  or  administrators. 
And  such  order,  so  entered  in  the  minutes  of  the  said  court, 
shall  be  a  sufficient  discharge  for  the  said  clerk,  apprentice,  or 
servant  from  his  or  her  indentures :  and  if  the  default  shall  be 
found  to  be  in  the  clerk,  apprentice,  or  servant,  then  the  said  jus- 
tices shall  cause  such  punishment,  by  fine  or  imprisonment,  or 
both,  as  for  a  misdemeanour,  to  be  inflicted  upon  him  or  her,  as 
by  them  shall  be  thought  meet."  Sess.  24.  c.  1 1 .  s.  9.  I  R.  L. 
138. 

An  apprentice  to  a  surgeon  was  sent  by  his  master  to  the  East  Rrowni.  er. 
Indies:  it  was  adjudged  that  the  master  cannot  compel  his  ap- 
prentice to  go  beyond  the  sea,  except  the  master  fto  with  him  ; 
but  he  may  send  him  to  any  part  of  England.  But  otherwise, 
jf  it  be  expressly  agreed,  or  the  nature  of  the  apprenticeship 
import  it,  as  if  the  master  be  a  merchant,  adventurer,  or  sailor. 

Neglect  on  the  part  of  the  master  to  instruct  him  in  the  mys-   i  n0tt.  5-6. 
tcries  of  that  trade  which  he  was  bound  to  him  to  learn,  is   a 
sufficient  cause  of  discharge. 

An  order  reciting  that  J.  H.  was  bound  out  by  indenture,  as  R.  ami    ir  : 
ihe  statute  requires,  to  J.  P.  and  being  lame  and  having  the  Owc"'  *  Slr< '-"'•• 
king':;  evil,  and  in  the  opinion  of  surgeons  incurable,  therefore 
the  justices  discharged  the  master  from  his  apprentice.      It  v.  as 
moved  to  confirm  the  order,  because  the.   muster  cannot  now 


20  APPRENTICES. 

have  the  end  of  the  binding,  which  was  the  service  of  his  apT 
prentice.  But  it  was  answered,  that  the  statute  only  empowers 
the  justices  to  discharge  for  misbehaviour,  and  not  for  sickness 
And  quashed  by  the  court ;  for  the  limit M-  takes  the  apprentice 
for  better  and  worse,  and  is  to  provide  for  him  in  sickness  and 
in  health. 

i  Bott.* 571.  However,  where  a  boy  was  put  apprentice,  and  after  three 

year's  service  he  plainly  appeared  to  be  an  ideot,  incapable  of 
learning  his  trade,  this  defect  was  held  to  be  a  good  cause  of 
discharge. 

HawkeswortU  OH  the  act  of  the  .5  Eliz.  c.  4.  s.  35,  which  is  substantially 

c^'i'^un.].  ^e  same  as  our  act,  and  on  the  construction  of  which  the  cases 
si?.  S.P.I  Mod.  cited  in  this  part  of  the  present  title  have  been  decided,  it  was 
held,  that  it  was  the  intention  of  the  act  that  an  apprentice 
should  be  discharged  of  a  bad  master,  as  well  as  that  the  mas- 
ter should  be  discharged  of  a  bad  apprentice.  And  the  clause 
which  gives  power  to  administer  punishment  to  a  bad  appren- 
tice, does  not  restrain,  but  enlarge  the  power  of  the  magistrate* 
beyond  what  it  had  given  them  concerning  masters ;  for  they 
cannot  administer  punishment  to  masters  for  their  faults,  but 
only  discharge  their  apprentices ;  but  for  the  faults  of  the  ap- 
prentices they  may  inflict  corporeal  punishment  upon  them,  or 
discharge  them  at  their  discretion.  In  this  case,  the  sessions 
had  ordered  the  apprentice  to  be  discharged,  and  part  of  the 
money  the  master  had  with  him  to  be  refunded,  and  the  appren- 
tice to  stand  committed  till  he  find  good  security  for  his  good 
behaviour.  The  application  to  quash  the  order  was  made  on 
the  part  of  the  master,  but  the  court  confirmed  it. 

4B»c.  Abr.  56r.  Under  the  same  act  it  has  been  held  that  the  application  may 
be  made  in  the  first  instance  to  the  sessions,  and  that  the  pre- 
vious application  to  a  justice  is  only  discretionary. 

z  Burns',  us.  The  justice  to  whom  the  application  is  at  first  made,  if  he 

sees  cause,  may,  by  consent  of  the  master,  discharge  the  ap- 
prentice from  his  apprenticeship ;  but  this  must  not  be  by  a 
verbal  discharge ;  for  the  apprentice  being  by  deed,  cannot  be 
discharged  but  by  deed ;  that  is,  by  order  underline  hand  and 
seal  of  the  justice. 

i  saik.  67.  2  If  the  master,  being  bound;  o  answer  at  the  sessions,  does 
not  appear,  it  is  a  forfeiture  of  his  recognisance  ;  but  yet  at  the 
same  time  the  justices  may  proceed  to  make  an  order  against 
him,  for  though  the  statute  says  the  discharge  mu&t  be  made  on 
the  appearance  of  the  master,  yet  it  must  have  a  reasonable 
construction,  so  as  not  to  permit  the  master  to  take  advantage 
of  his  own  obstinacy. 

i  MO*,  ass.    i        But  the  master  must  be  summoned,  and  it  must  appear  on 
$13  'p?.'?^"0"'  the  face  °f  tlie   °rder  that  he  cither  appeared  or  was   sum- 
moned. 

v.  Aimes,  i       An  order  on  the  master  to  return  money  is  good,  though  it  is 
t,  is?,   pi.  not  averrc<i  that  he  had  any  with  the  apprentice,  for  the  order 

4Bac.  Abr. 


APPRENTICES.  gl* 

Ireing  to  return  money,  is  as  necessary  a  proof  of  the  receipt  of 
it  as  if  it  had  been  expressly  alleged. 

The  course  of  proceeding  prescribed  in  this  section  of  th* 
act  is  not  restricted  Jo  any  specirs  of  apprentices,  but  that  which 
we  are  now  to  consider  is  confined  to  those  upon  whose  binding 
out  no  sum  of  money  was  paid. 

Second.  With  respect  to  the  proceeding  before  three  ma- 
gistrates, it  is  enacted  :  "  That  it  shall  be  lawful  for  any  three  or 
more  justices,  in  any  county,  or  for  the  mayor,  recorder,  and 
aldermen  of  any  city,  or  any  three  or  more  of  them,  upon  any 
complaint  or  application,  by  any  apprentice  or  servant,  upon 
whose  binding  out  no  sum  of  money  was  paid,  touching  or  con- 
cerning any  misusage,  refusal  of  necessary  provisions  or  death- 
ing,  cruelty,  or  other  ill  treatment,  of  or  toward  such  apprentice 
or  servant,  by  his  or  her  master  or  mistress,  by  precept,  under 
their  hands  and  seals,  to  summon  such  master  or  mistress  to  ap- 
pear before  such  justices,  fcc.  er  any  two  or  more  of  them,  at  a 
reasonable  time  and  place  to  be  named  in  such  summons ;  and 
such  justices,  fcc.  shall  and  may  examine  into  the  matter  of  such 
complaint ;  and  upon  proof  thereof,  made  upon  oath,  to  their 
satisfaction,  (whether  the  master  or  mistress  be  present  or  not, 
if  service  of  the  summons  be  also  upon  oath  proved,)  the  said 
justices,  &c.  may  discharge  such  apprentice  or  servant,  by  war- 
rant or  certificate  under  their  hands  and  seals,  for  which  war- 
rant or  certificate  no  fee  shall  be  paid."  Sess.  24.  c.  1 1.  s.  10. 
IR.  L.  138. 

"  It  shall  be  lawful  for  such  justices,  fee.  or  any  two  or  more 
of  them,  upon  application  or  complaint  made  upon  oath,  by  any 
master  or  mistress,-  against  such  apprentice  or  servant,  touching 
or  concerning  any  misdemeanour,  miscarriage,  or  ill  behaviour  in 
his  or  her  service,  to  hear,  examine,  and  determine  the  same, 
and  to  punish  the  offender  by  commitment  to  the  house  of  cor- 
rection, (if  any  ther-i  be,)  or  to  the  common  gaol  of  the  county 
or  city,  there  to  remain  at  hard  labour  for  a  reasonable  time,  not 
exceeding  one  calendar  month,  or  otherwise,  by  discharging 
such  apprentice  or  servant,  in  manner  and  form  before  men- 
tioned." s.  11. 

If  an  apprentice   runs  away,  and  is  employed  by  a  stranger   James  r.Le  Roy, 
without  the  consent  or  knowledge  of  his  master,  the  master  is   |74*uhn"  'Kcl" 
entitled  to  his  earnings,  whether  the  third  person  did  or  did  not 
know  that  he  was  an  apprentice.     In  case  of  a  hired  servant, 
the  employer  must  have  notice  to  make  himself  answerable. 


*  On  the  same  words  in  the  stat,  20  G.  2.  c.  19.  s.  4.  it  has  been  held 
that  tho  complaint  must  be  by  the.  master  or  mistress,  but  it  may  be 
verified  by  the  oath  of  another  person.  Finley  v.  Jowlt,  12JE«*f. 


''22  APPRENTICES. 

"  If  any  apprentice  or  servant  shall  absent  himself  from  liie 
service  of  his  master  or  mistress,  before  the  term  of  his  appren- 
ticeship or  service  shall  be  expired,  every  such  apprentice  or 
servant  shall,  at  any  time  thereafter,  \vherever  he  shall  be  found, 
be  compelled  to  serve  his  said  master  or  mistress  for  double  the 
time  he  shall  so  have  absented  himself  from  such  service,  un- 
less he  shall  make  satisfaction  to  his  master  or  mistress  fur  the 
loss  he  may  have  sustained  by  such  absence  from  his  service. 
And  so  from  time  to  time,  as  often  as  any  such  apprentice  or 
servant  shall,  without  leave  of  his  master  or  mistress,  absent 
himself  from  his  service  before  the  term  of  his  contract  shall  be 
fulfilled.  Provided  always,  that  nothing  in  the  present  sectiort 
of  this  act  shall  extend  to  an  apprentice  whose  master  or  mis- 
tress shall  have  received  with  such  apprentice  any  sum  or  sums 
of  money  to  learn  such  profession,  trade,  or  employment. 
And  also,  that  no  apprentice  or  servant  shall  be  compelled  to 
serve  for  any  time  or  term,  or  to  make  any  satisfaction  to  any 
master  or  mistress  after  the  expiration  of  three  years  next  after 
the  end  of  the  term  for  which  such  apprentice  or  servant  shall 
have  contracted  to  serve."  s.  12. 

"  If  any  person  shall  think  himself  aggrieved  by  such  deter- 
mination, order,  or  warrant  of  such  justice  or  justices,  mayor, 
recorder,  or  aldermen  aforesaid,  except  an  order  of  commit- 
ment, such  person  may  appeal  to  the  next  general  sessions  of  the 
peace,  to  be  holden  in  and  for  the  city  or  county  where  such 
determination  or  order  shall  be  made,  such  person  giving  sis 
days  notice  of  his  intention  of  bringing  such  appeal,  and  of  the 
cause  and  matter  thereof,  to  such  justice  or  justices  of  the 
peace,  mayor,  recorder,  or  aldermen,  and  the  parties  concern- 
ed, and  entering  into  a  recognisance  within  three  days  after 
such  notice,  before  some  justice  of  the  peace,  or  the  mayor  or 
recorder,  or  one  of  the  aldermen  for  such  city  or  county,  with 
sufficient  surety,  conditi6ned  to  try  such  appeal  at,  and  abide 
the  order  and  judgment  of,  and  pay  such  costs  as  shall  be 
awarded  by  the  justices,  at  such  general  sessions;  which  said 
justices,  at  their  said  session,  upon  due  proof  upon  oath  of  such 
notice  being  given,  and  of  entering  into  such  recognisances  as 
aforesaid,  shall,  and  are  hereby  directed  to  proceed  in,  and 
hear,  and  finally  determine  the  causes  and  matters  of  all  such 
appeals,  and  to  give  and  award  such  costs,  to  any  of  the  re- 
spective parties,  as  they  in  their  discretion  shall  judge  proper 
and  reasonable,  not  exceeding  ten  dollars  :  the  same  to  be  levied 
by  distress  and  sale  of  the  goods  and  chattels  of  such  pen-on 
against  whom  such  determination  shall  be  made  ;  and  that  their 
judgments  and  orders  therein  shall  be  final  and  conclusive  to  all 
parties  concerned."  s.  13. 

Proceedings  under  this  act  cannot  be  remove'!  in'o  the  su- 
preme court,  until  after  a  final  determination  and  }nd<;. 


APPRENTICES.  23 

ihereon  by  the  court  of  sessions.     Sess.  24.  c.  13.  s.  5.     1  R. 
L.  142. 

IV.  How  an  apprentiseship  may  be  determined. 
Besides  the  expiration  of  the  time  limited  in  the  indentures,  *   Burr.  s.  c. 

'    562.       Rex     V. 

or  the  apprentice  s  arriving  at  the  age  of  twenty-one,  when,  as  waddington,  a 
we  have  seen  before,  he  may  elect  to  avoid  the  contract,  an  ap-  j^"'vf'j^sUoM 
prenticeship  may  be  determined  by  the  consent  of  all  the  par-  of  DeTonsMre, 
ties  concerned,  that  is,  the  master,  the  infant,  and  the  father,  Burns'0"™!2  6 
guardian,  or  overseers.   Where  no  consideration  is  given  to  the  Mod. 70. 
master  for  liberating  the  apprentice,  it  seems  that  the  indenture 
should  be  both  given  up  and  cancelled  ;  for  if  it  remain  uncan- 
celled,  it  continues  in  force  until  the  term  expires,  and  should  it 
«ome  into  the  master's  possession,  he  may  sue  on  the  covenants. 
But  when  lie  receives  money  of  an  apprentice  of  full  age  t* 
vacate  his  indentures,  the  relation  is  dissolved  though  the  in- 
dentures remain  uncancelled.     So,  if  he  license  his  apprentice 
to  leave  him,  he  cannot  afterwards  recall  that  license  ;  and  it 
may  be  pleaded  to  an  action  of  covenant  by  the  master. 

An  indenture  of  apprenticeship  is  assignable  neither  in  law  *  Bac.  Abr.  577. 
or  equity. 

It  hath  been  held  that  though  justices  have  a  jurisdiction  «f  IKd«- 
discharging  apprentices,  and  may  bind  them  to  other  masters, 
that  they  cannot  turn  them  over  ;  and,  therefore,  an  order  that 
an  apprentice,  whose  master  was  dead,  should  serve  the  remain- 
der of  his  time  with  his  master's  widow's  second  husband,  was 
quashed  ;  because  the  justices  have  nothing  to  do  about  turning 
over  an  apprentice;  and  that  though  he  applied  to  them,  that 
rould  not  give  them'a  jurisdiction. 

Justices  cannot  judge  of  an  assignment,  for  they  cannot  try  Rue  v.  Barnes, 
the  validity  of  a  deed. 

It  seems  agreed  that  if  a  man  be  bound  to  instruct  an  ap-  4Ba«.  Atr.*?*, 
prentice  in  a  trade  for  seven  years,  and  the  master  die,  that  the 
condition  is  dispensed  with,  being  a  thing  personal ;  but  if  he 
be  bound  further,  that  in  the  meantime  he  will  find  him  with 
meat,  drink,  cloathing,  and  other  necessaries,  here  the  death  of 
the  master  doth  not  dispense  with  the  condition,  but  his  execu- 
tors shall  be  bound  to  perform  it,  as  far  as  they  have  assets. 
For  there  is  a  great  difference  between  a  covenant  to  maintain, 
and  a  covenant  to  instruct ;  tfae  first  is  a  lien  upon  the  exscu- 
-tor,  though  not  named,  in  right  of  the  testator's  assets  being 
come  to  his  hands  ;  but  the  other  is  a  trust  annexed  to  the  per- 
son of  the  master. 

But  if  a  person  is  bound  apprentice  by  justices  of  the  peace,  nrid. 
and  the   master  happens  to  die  before  the  term   expires,  the 
justices  have  no  power  to  oblige  his  executor  by  their  orderU. 
receive  such  apprentice  and  maintain  him, 

' 


jj  .LAIUNMENT. 

V.1  Other  particulars  relating  to  apprcnt:  • 

The  act  making  it  felony  in  servants  to  embezzie  th< /,: 
ters  goods,  does  not  extend  to  apprentices  within  the  age   ol 
eighteen  years,  but  they  shall  stand  and  be  in  like  case  as  if  the 
act  had  not  been  made.      1  JR..  L.  412. 

R«V.  Panic),  e  To  intice  an  apprentice  to  depart  from  his  master,  is  not  an 
offence  of  a  public  nature  for  which  an  indictment  will  lie  ;  but 
the  party's  remedy  is  by  an  action  on  the  case. 

By  the  first  section  of  the  act  concerning  apprentices  and 
servants,  it  is  provided,  "that  no  person  whatsoever  shall  cause 
any  apprentice  or  journeyman  to  be  bound  by  oath,  bond,  or 
otherwise,  that  after  his  or  her  apprenticeship,  or  term  expired, 
such  apprentice  or  journeyman  shall  not  set  up  or  occupy  any 
shop,  house,  or  cellar,  and  therein  use  his  profession,  trade,  or 
employment ;  nor  by  any  means  exact  or  take  of  any  such  ap- 
prentice or  any  journeyman,  nor  of  any  other  person  setting 
up,  occupying,  or  using  for  him  or  them,  after  his  or  their  ap- 
prenticeship or  term  expired,  any  money,  or  other  thing,  for 
using  the  same,  upon  pain  to  forfeit  for  every  offence  one  hun- 
dred dollars,  the  one  half  thereof  to  the  people  of  this  state, 
find  the  other  half  to  any  person  who  will  sue  for  the  same,  to 
be  recovered  with  costs,  fcc.  And  every  bond,  or  other  secu- 
rity, given  contrary  to  this  act,  shall  be  void."  I  R.  L.  135. 


ARRAIGNMENT. 

»VL. 

4^  Black.  Com.  Arraignment  is  the  calling  the  prisoner  to  answer  the  mat- 
ter charged  against  him  in  the  indictment. 

2  Hawk.  c.  28.  There  is  no  necessity  that  a  prisoner  at  the  time  of  his  con- 
finement hold  up  his  hand  at  the  bar,  or  be  commanded  so  to 
do  ;  for  this  is  only  a  ceremony  for  making  known  the  person 
of  the  offender  to  the  court ;  and  if  he  answers  that  he  is  the 
same  person,  it  is  all  one. 

It  is  no  longer  necessary,  on  the  arraignment  or  trial  of  any 
person  for  treason  or  felony,  to  ask  the  prisoner  how  he  wiil  be 
tried,  nor  to  charge  the  jury  to  inquire  whether  the  prisoner  fieri 
or  not,  or  what  goods  or  chattels,  lands  and  tenements,  the  pri- 
soner at  any  time  had.  Sess.  33.  c.  8.  s.  2.  1  R.  L.  495. 

In  all  cases  of  treason  or  felony,  if  the  party  indicted  shall, 
on  his  arraignment,  obstinately  stand  mute,  or  refuse  to  plead 
and  be  tried,  it  shall  be  adjudged  to  be  a  denial  of  the  facts 
charged  on  the  indictment;  and  the  trial  shall  thereupon  pro 
ceed  in  like  manner,  and  the  record  shall  be  in  the  same  form, 
and  the  same  judgment  shall  be  given  agaiutt  the  party,  iV 


ARREST. 

found  guilty,  as  if  such  party,  on  being  arraigned,  had  pleaded 
not  guilty.     S.  I.  p.  4-9 4. 


ARREST. 

An  arrest  is  the  apprehending  or  restraining  of  one's  person,  2E°iack*  C°m' 
»n  order  to  be  forth  coming  to  answer  an  alleged  or  suspected 
crime.  To  this  arrest  all  persons  whatsoever,  without  distinc- 
tion, are  equally  liable  in  all  criminal  cases  ;  but  no  man  is  to  be 
arrested  unless  charged  with  such  a  crime  as  will,  at  least,  jus- 
tify holding  him  to  bail,  when  taken. 

I.  For  what  causes  of  suspicion  an  arrest  may  Ic  made. 
II.  By  whom  the  arrest  shall  be  made. 

III.  Tlie  manner  of  an  arrest. 

IV.  Hue  and  cry. 

V.   JPhat  is  to  be  done  after  the  arrest.  » 

I.  For  what  causes  of  suspicion  an  arrest  may  be  made. 
If  a  felony  has  actually  been  committed,  any  man,  upon  rea-  jiamiui  v. 

,J  .    J  .  Vayne,  1  Doug. 

aooable  probable  grounds  of  suspicion,  may  justify  apprehend-  359.  Uiiwhii  - 
jng  the  suspected  person,  to  carry  him  before  a  magistrate  ;  but  |j'*l!|i|l.p029i 
il'  no  felony  should  afterwards  appear  to  have  been  committed, 
an  officer,  but  not  a  private  person,  may  justify  an  arrest  made 
on  a  reasonable  charge  of  felony  without  a  warrant. 

The  following  are  some  of  the  principal  causes  of  suspicion  2  "•*>>••  '•  r 
which  are  generally  agreed  to  justify  the  arrest  of  an  innocent 
person  for  felony. 

1.  The  common  fame  of  the  country  :  but  it  seems  that  it 
ought  to  appear  upon  evidence,  in  an  action  brought  for  such 
an  arrest,  that  such  fame  had  some  probable  ground. 

'2.  The  living  a  vagrant,  idle,  and  disorder!}'  life,  without  having 
«ny  means  to  support  it. 

'.).  The  being  in  company  with  one  known  to  be  an  offender, 
id  the  time  of  the  offence;  or  generally  at  other  times  keeping 
company  with  persons  of  scandalous  reputations. 

4-.  The  being  found  in  such  circumstances  as  induce  a  strong 
presumption  of  guilt  ;  as  coming  out  of  a  house  wherein  mur- 
der has  been  committed,  with  a  bloody  knife  in  one's  hand ;  o. 
being  found  in  possession  of  any  part  of  goods  stolen,  without 
being  able  to  give  a  probable  account  of  coming  honestly  by 
them. 

5.  The  behaving  one's  seif'in  such  a  manner  as  betrays  a 
consciousness  of  guilt ;  as  where  a  man  being  charged  with 
treason  or  felony,  says  nothing  to  it,  but  seems  by  his  silence  to 
own  himself  piilf".'  ;  or  where  a  man,  accused  of  any  such 

r  *  i 


,'(j  ARREST. 

n-mie,  upon  hearing  that  a  warrant  is  taken  out  against  bin.. 

absconds. 
'.  ir.!v.u.  c.  12.          Q.    The  being  pursued  by  hue  and  cry.     But  generally  no 

such  cause  of  suspicion,  as  any  of  the  abovementioned,  will 
justify  an  arrest,  where,  in  truth,  no  such  crime  hath  been  com- 
mitted, unless  it  be  in  tlie  case  of  hne  and  cry. 

II.  By  whom  ike  arrest  shall  be  made. 


i  Burn's  Just. 
Ml. 


In  criminal  cases,  a  person  may  be  apprehended  and  restrain- 
ed of  his  liberty,  not  only  by  process  out  of  some  court,  or 
warrant  from  a  magistrate,  but  frequently  by  a  constable,  watch- 
man, or  private  person,  without  any  warrant  or  precept. 
?rH?!e>  S6'  z  If  <a  justice  see  a  felony  or  other  breach  of  the  peace  com- 
7.  SL-O-  further'  mitted  in  his  presence,  he  may  in  his  own  person  apprehend  the 
pnUKiw  "'  UI'  offender.  And  he  may  also,  byword  of  mouth,  command  any 
Truii,  u  Johns,  one  to  arrest  another  who  shall  be  guilty  of  any  felony,  or  actual 
breach  of  the  peace  in  his  presence,  and  such  command  is  a 
good  warrant  without  writing.  And  all  persons  Avhatsoevpr 
Avho  are  present  when  a  felony  is  committed,  or  a  dangerous 
wound  given,  are  bound  to  apprehend  the  offender,  on  pain  of 
being  fined  and  imprisoned  for  their  neglect,  unless  they  were 
under  age  at  the  time  :  and  they  are  likewise  bound  to  assist  an 
officer  demanding  their  help  for  the  taking  of  a  felon,  suppress- 
ing an  affray,  apprehending  the  affrayers,  and  the  like.  So  any 
pcrsoa  whatever,  if  an  affray  be  made  to  the  breach  of  the  peace, 
may,  without  a  warrant  from  a  magistrate,  restrain  any  of  the  of- 
fenders, in  order  to  preserve  the  peace  ;  but  after  there  is  an  end 
of  the  affray,  they  cannot  be  arrested  without  a  warrant. 
ccjitsv.  iiui-tin  Assault  and  battery  and  false  imprisonment.  The  defendant 
^  John*.  Rep.  wag  <.\ieT\S  of  tne  county  of  Orange,  and  had  a  warrant  from  a 
justice  of  the  peace  to  arrest  five  persons  on  a  charge  of  a 
breach  of  the  peace.  The  persons  against  whom  the  warrant 
had  issued  were  in  the  plaintiff's  house,  and  refused  to  be  taken  : 
the  sheriff,  not  having  sufficient  force  with  him  to  take  them, 
returned  to  tioslien  for  a  greater  force,  and  commanded  the 
plaintiff  and  others  in  the  mean  time  to  guard  the  house  and 
prevent  the  escape  of  the  men  :  they  however  did  escape,  and 
on  the  return  of  the  defendant,  some  persons  who  were  then 
present  charged  the  plaintiff  with  having  assisted  the  men  i» 
making  their  escape,  upon  which  the  defendant  arrested  the 
plaintiff  and  carried  him  before  a  justice.  The  judge  stated  tr. 
the  jury,  that  the  mere  refusal  of  the  plaintiff  to  aid  the  sheriff 
would  not  justify  the  latter  in  arresting  him  without  a  warrant, 
even  for  the  purpose  of  taking  him  before  a  magistrate.  That 
lhc  sheriff  could  not  delegate  to  the  persons  left  at  the  plaintiff's 
house  the  power  of  arresting,  during  his  absence,  the  men  against 
whom  the  warrant  had  been  issued.  The  plaintiff,  thereto •. 


ARREST. 

far  from  being  bound  to  prevent  the  men  from  escaping, 
have  rendered  himself  liable  to  an  action  if  he  had  attempted 
to  stop  them ;  and  that,  in  his  opinion,  the  plaintiff  was  clearly 
entitled  to  recover.     The  jury  accordingly  found  a  verdict  for 
the  plaintiff,  which  the  defendant  now  moved  to  set  aside,  for 
the  misdirection  of  the  judge,  and  as  against  law  and  evidence. 
KENT,  Ch.  J.  delivered  the  opinion  of  the  court.  The  ques- 
tion  of  justification  turned  upon  this  fact:  whether  the  plain- 
tiff, contrary  to  his  duty,  aided  or  assisted  the  rioters  in  their 
resistance  to  the  execution  of  the  warrant,  or  in.  their  escape. 
There  were  several,  and  some  of  them  strong  circumstances, 
from  which  the  jury  might  have  inferred  that  fact  against  him  : 
and  if  so,  the  defendant  was  justified  in  arresting  him.     The 
sheriff  is,  ex  ojjicio,  a  conservator  of  the  peace  ;  and  it  is  not 
only  his  right,  but  his  duty  to  arrest  all  persons,  with  their  abet- 
tors, who  oppose  the  execution  of  process.     And,  as  Sir  Mat- 
thew Hale  has  observed,  (2  Hale,  85.)  these  ministers  of  public 
justice  have  the  greatest  protection  and  encouragement  in  the 
due  execution  of  their  office.     When  the  jury  were  told  that 
the  defendant  could  not  authorise  the  persons  left  in  the  house 
in  his  absence  to  arrest  the  rioters,  and  that  it  would  have  been, 
unlawful  to  have  opposed  their  escape,  I  think  there  was  a  mi- 
direction  in  point  of  law,  and  one  which  very  probably  deter 
mined  the  verdict.     The  defendant  had  come  to  the  place  tt> 
execute  the  process,  and  meeting  with  a  resistance  in  the  plain- 
tiff's house,  wrhich  he  had  not  strength  to  subdue,  he  went  back 
to  Goshen  for  assistance,  and  directed  the  plaintiff  and  others 
to  aid  and  assist  in  preventing,  in  the  mean  time,  the  escape  of 
the  rioters.  He  must  be  deemed  in  this  case  to  have  been  con- 
structively present,  so  as  to  justify  an  arrest  of  the  rioters. 
during  his  temporary  absence,. provided  he  was  absent  on  tlia! 
business,  and  this  was  a  matter  of  fact  for  the  jury.     The  slu' 
riff  may  take  the  power  of  the  county,  if  necessary,  after  resist- 
ance, to  execute  process.      Every  man  is  bound  to  bo  aiding 
and  assisting,  upon  order  or  summons,  in  preserving  the  peace, 
and  apprehending  offenders,  and  is  punishable  if  he  refuses. 

The  question  in  these  cases  does  not  turn  upon  the  fact  of 
distance,  so  long  as  the  sheriff  is  within  his  county,  and  is  lona 
fide  and  strictly  engaged  in  the  business  of  the  arrest.  In  the 
execution  of  civil  process,  where  there  was  no  resistance,  it  was 
held  by  Lord  Mansfield,  in  Blotch  v.  Jrclicr,  (Cou-p.  63.)  that 
the  officer  must  be  the  authority  to  arrest,  but  he  need  not  be 
the  hand,  nor  present,  nor  in  sight ;  nor  is  any  exact  distance  pre- 
scribed. The  necessity  of  the  doctrine  of  constructive  pre- 
sence applies  with  much  more  force,  and  oug-ht  to  be  received 
with  much  more  liberality  when  the  officer  is  serving  criminal 
process,  and  meets  with  resistance.  Ho  is  present  in  judgmon* 
of  law  by  IMS  authority,  nnO  C.VTV  person  vh°  ":''~  him.  in  r>-  " 


28  ARREST. 

suance  of  his  summon?,  acts  under  the  same  protection,  ami 
the  same  responsibility,  as  if  the  sheriff  stood  in  his  view.  This 
we  consider  to  be  a  sound  and  essential  principle,  and  if  it  had 
been  stated  to  the  jury,  we  cannot  say  that  they  would  not  have 
acquitted  the  defendant,  on  the  ground  that  the  plaintiff  had, 
contrary  to  his  duty,  aided  or  countenanced  the  escape  of  the 
rioters  during  the  absence  of  the  sheriff. — New  trial  granted. 

>Ha«k.c.  12.  s.  Any  one  may  lawfully  lay  hold  of  another  when  he  shall  seo 
him  upon  (he  point  of  committing  a  treason  or  felony,  or  doing 
any  act  which  would  manifestly  endanger  the  life  of  another, 
and  may  detain  him  until  it  may  reasonably  be  presumed  that  he 
has  changed  his  purpose.* 

1  Hale.  m.  AS  to  arrest  with  a  warrant ;  the  warrant  is  ordinarily  directed 

152.  •  to  the  sheriff  or  constable,  and  they  are  indictable,  and  subject 

thereon  to  a  fine  and  imprisonment,  if  they  neglect  or  refuse  it. 
When  directed  to  the  sheriff,  he  may  command  his  under  she- 
riff, or  other  sworn  and  known  officer,  to  serve  it,  without  writing 
any  precept.  But  if  he  will  command  a  man,  that  is  not  his  of- 
ficer, to  serve  it,  ho  must  give  him  a  written  precept,  otherwise 
false  imprisonment  will  lie. 

3  Hawk. c.  is  .s.  Every  other  person,  however,  to  whom  it  is  directed,  must 
personally  execute  it ;  yet  it  seems  that  any  one  may  lawfully 
assist  him. 

:  Hale,  53i.  The  justice  may  direct  his  warrant  to  a  private  person,  and  it 

is  good,  but  he  is  not  compellable  to  execute  it ;  and  a  warrant 
directed  to  two  or  more  jointly  may  be  executed  by  any  one  of 
them  alone. 

III.   The  manner  of  an  arrest. 

i  Bum's  Just.  The  officer  to  whom  the  warrant  is  directed  and  delivered 

wUkaiiies  Case,  ought,  with  all  speed  and  secrecy,  to  find  out  the  party,  and  then 
9Co.es.  execute  it,  which  he  may  do  as  well  at  night  as  in  the  day  time, 

and  on  Sunday  as  well  as  any  other  day  of  the  week. 
Meyiiew  r.  Par-        ^  warrant  to  arrest  the  party  to  the  end  that  he  may  become 

ker,  8   Term  *  J 

lu-p.  no.  bound  to  appear  at  the  next  sessions,  means  the  next  sessions 

after  the  arrest,  and  not  after  the  date  of  the  warrant.  If  any 
person  misconduct  himself  by  keeping  back  warrants  of  arrest 
to  be  afterwards  made  use  of  for  vexatious  or  improper  pur- 
poses, he  subjects  himself  to  an  action  for  a  malicious  prosecu- 
tion at  the  suit  of  the  party  grieved :  but  the  warrant  is  a  suffi- 
cient justification,  in  trespass,  to  the  officer  charged  with  the 
execution  of  it. 


*  Tf,  when  a  man  is  apprehended  and  in  the  custody  of  officers  of 
justice,  some  other  person  undertake  to  interfere,  the  officers  may  ar- 
rest him.  Peake,  8?. 


.(REST.  i\j 

Any  justice  or  sheriff*,  but  not  a  piivr.tc  person,  on  just  cause,   i  Barn's  Jan. 
may  take  (he  power  of  the  county,  and  command  the  aid  and   l 
attendance  of  as  many  persons  as  they  see  fit,  to  pursue,  arrest 
and  imprison  traitors,  murderers,  robbr  rs,  and  other  felons  and 
breakers  of  the  peace  ;  and  every  person,  being  required,  must 
aid  and  assist  them  on  pain  of  fine  and  imprisonment. 

As  to  the  cases  in  which  it  is  lawful  to  break  open  doors  in  2  Hawk.  c.  u. 
order  to  apprehend  offenders,  it  is  to  be  observed  that  the  law 
never  allows  of  such  extremities  except  in  cases  of  necessity  : 
and  therefore  that  no  one  can  justify  the  breaking  open  another 
man's  doors  to  make  an  arrest,  unless  he  first  signify  to  those  in 
the  house  the  cause  of  his  coming,  and  request  them  to  give  him 
admittance.  But  where  a  person,  who  is  authorized  to  arrest 
another  who  is  sheltered  in  a  house,  is  denied  quietly  to  enter 
into  it  in  order  to  take  him,  it  seems  generally  to  be  agreed, 
that  he  may  justify  breaking  open  the  doors  in  th«  following  in- 
stances : 

I.  Upon  a  capias  grounded  on  an  indictment  for  any  crime 
whatsoever,  or  upon  a  capias  to  compel  a  man  to  find  sureties 
for  the  peace  or  for  his  good  behaviour,  or  even  upon  a  warrant 
from  a  justice  of  the  peace  for  such  purpose. 

'2.  Upon  a  capias  uilngatum,  or  capias  pro  fine,  in  any  action 
whatsoever. 

.3.  Upon  the  warrant  of  a  justice  of  the  peace  for  the  levying 
a  forfeiture  in  execution  of  a  judgment  or  conviction. 

'!•.  Where  a  forcible  entry  and  detainer  is  either  found  by 
inquisition  before  justices  of  the  peace,  or  appears  upon  their 
view. 

5.  Where  one  known  to  have  committed  a  treason  or  felony, 
or  to  have  given  another  a  dangerous  wound,  is  pursued  either  4 

with  or  without  a  warrant,  by  a  constable  or  private  person  : 
but  where  one  lies  under  a  probable  suspicion  only,  and  is  not 
indicted,  it  seems  to  be  the  better  opinion  at  this  day,  (accord- 
ing to  Hawkins,)  that  no  one  can  justify  the  breaking  open  of 
doorSj  in  order  to  apprehend  him. 

But  Lord  Hale  ('2  Hist.  P.  C.  11 7.)  says,  that  upon  a  warrant 
for  probable  cause  of  suspicion  of  felony,  the  person  to  whom 
such  warrant  is  directed  may  break  open  doors  to  take  the  per- 
son suspected,  if  upon  demand  he  will  not  surrender  himself,  as 
well  as  if  there  .had  been  an  express  and  positive  charge  .igainst 
him  ;  and  so  hath  the  common  practice  prevailed,  notwithstand- 
ing the  contrary  opinion  of  Lord  Coke. 

There   can   be    no  doubt,   however,  but  that  he  may  break  2  Ha],,,  m.    i 
open  the  house  of  another  person  to  take  him,  for  the  sheriff  Haie.fz  2iiuk, 
may  do  the  same  upon  civil  process ;  yet  he  should  assure  him- 
-cif  that  the  felon  is  there,  otherwise  he  will  be  a  trespasser. 
But  he  who  arrests  as  a  private  man,  (i.  e.  without  warrant,) 
barely  upon  suspicion,  does  it  at  the  further  peril,  that  if  Un- 
person prove  N  be  ''i^nppn^.  although  sucp<Ttpd  on  reason 


30  1RREST. 

cause,  it  is  not  justifiable  ;  but  a  constable  in  a  similar  case  way 
justify.  The  reason  of  which  distinction  is  this  ;  because  in  the 
case  of  a  private  person,  he  is  merely  permitted  to  arrest  OB 
suspicion,  and  is  not  punishable  if  he  omit  ;  but  a  constable  i» 
punishable  for  neglecting  it  upon  complaint. 

2  Hnrk.  c.  14.  Q^  "Where  an  affray  is  made  in  a  house  in  the  view  or  hearing 
of  a  constable  ;  or  where  those  who  have  made  an  affray  in  his 
presence  fly  to  a  house,  and  are  immediately  pursued  by  him, 
and  he  is  not  suffered  to  enter;  he  may  break  open  the  doors 
in  order  to  suppress  the  affray  in  the  first  case,  or  to  apprehend 
the  affrayers  in  either  case. 

7.  Wherever  a  person  is  lawfully  arrested  in  any  cause,  and 
afterwards  escapes  and  shelters  himself  in  a  house. 

8.  If  an  officer  enter  into  a  house  to  serve  any  process,  civil 
or  criminal,  and  the  doors  are  locked  upon  him  whilst  he  is  in 
the  house,  he  may  justify  breaking  them  open  in  order  to  re- 
gain his  liberty. 

2  H«wk.  e.  is.  s.       Officers  sworn,  and  commonly  known  to  be  such,  when  act- 
'  ing  within  their  own  precincts,  need  not  show  their  warrant  to 


the  party,  notwithstanding  he  demand  the  sight  of  it  :  still  they, 
and  all  other  persons  making  an  arrest,  ought  to  acquaint  the 
party  with  the  substance  of  it  :  and  all  private  persons  to  whom 
such  warrants  are  directed,  and  even  officers,  if  they  are  not 
sworn  and  commonly  known,  and  though  they  arc,  yet  if 
they  are  acting  out  of  their  own  precincts,  must  show  their 
warrants  if  demanded.  But  if  the  constable  have  no  warrant, 
but  apprehends  the  party  by  virtue  of  his  office,  it  is  sufficient 
to  notify  to  him  that  he  is  constable,  and  that  he  arrests  him. 

1  s»ik.  79.  s          Bare  words  do  not  constitute  an  arrest,  without  laying  hold 
i.  cases  temp!  °f  the  person,  or  otherwise  confining  him.     As,  if  a  constable 
"*^w-  3D1-   6  come  to  the  party  and  require  him  to  go  before  the  justice,  this 

is  no  arrest.  But  if  an  officer  comes  into  a  room,  and  tells  the 
party  he  arrests  him,  and  locks  the  door,  this  is  an  arrest,  for  he 
is  in  the  custody  of  the  officer. 

2  Hawk.  e.  K.  ».       It  has  been  holden  that  if  a  constable,  having  arrested  the 

party  by  force  of  a  warrant,  suffer  him  to  go  at  large  upon  his 
promise  to  come  again  at  such  a  time  and  find  sureties,  he  can- 
not afterwards  arrest  him  by  force  of  the  same  warrant  :  how- 
ever, if  the  party  return  and  put  himself  again  under  the  custody 
of  the  constable,  it  seems  probable  that  he  may  lawfully  detain 
him,  and  bring  him  before  the  justice  in  pursuance  of  the  warrant. 
But  Mr.  Hawkins  adds,  as  the  law  seems  not  to  be  settled  ia 
relation  to  such  an  escape  after  an  arrest  by  virtue  of  civil  pro- 
cess ;*  so  neither  doth  it  seem  to  be  clear  in  relation  to  an 


*  But  it  is  now  settled,  that  the  voluntary  return  of  a  prisoner  in  a 
civil  suit,  before  action  brought,  is  equal  to  a  retakins  upon  fresh  pur- 
suit. 1  Bae.  Abr.  523. 


ARREST.  SI 

escape  after  an  arrest  by  force  of  such  a  warrant  from  a  ju»Uce 

ut'  the  peace.     But  if  the  party  escape  (without  permission  of  J31"*'1  Just' 

the  officer)  he  may,  upon  fresh  suit,  take  him  again  and  again,  as 

often  as  he  escapes,  although  he  were  out  of  view,  or  fled  into 

another  town  or  county. 

An  unlawful  arrest,  without  a  justice's  warrant,  cannot  be  made  I  Bac- Ahr- M0 
good  by  u  warrant  taken  out  afterwards. 

IV.  Has  and  cry. 

Hue   and  cry  is  the  old  common  law  process  of  pursuing,  ;jg,B'*ek>  c*m> 
with  horn  and  with  voice,  all  felons,  and  such  as  have  dan- 
gerously wounded  another;  which  all  who  are  present  when  a  sHawk.c.  i».  s. 
felony  is  committed,  or  a  dangerous  wound  given,  are  bound  to  5i 
do,  under  pain  of  fine  and  imprisonment,  and  a  man  may  law- 
fully raise  it  against  one  who  sets  upon  him  in  the  highway  to 
rob  him. 

"  When  any  felony  shall  be  committed,  public  notice  thereof 
shall  be  immediately  given  in  all  public  places  near  where  the 
name  was  committed,  and  fresh  pursuit  shall  be  forthwith  made 
after  every  such  felon  by  sheriffs,  coroners,  constables,  marshalls, 
and  all  other  persons  who  shall  be  by  them  commanded  or 
summoned  for  that  purpose ;  and  every  competent  person  who 
will  not  do  '-o,  and  be  thereof  convicted,  shall  be  punished  by 
fine  according  to  the  discretion  of  the  court  having  cognizance 
•f  the  offence  ;  and  every  such  officer  who  shall  conceal  or  pro- 
cure to  be  concealed  any  felony,  or  who  shall  not  do  his  duty 
in  the  premises,  and  be  thereof  convicted,  shall  be  punished  by 
fine  and  imprisonment,  in  the  like  discretion  of  any  court  having 
cognizance  of  the  offence."  Sess.  24.  c.  31.s.  1.  1  R.  L.  149. 

Hue  and  cry  may  be  raised  either  by  warrant  of  a  justice  of  •*  BI.  Com.2<)< 
the.  peace,  or  by  a  peace  officer,  or  by  any  private  man  who  101.  2\n^'.  ii$J 
knows  of  a  felony  having  been  committed,  or  of  the  other  causes  8B»e' Ahr-  '"* 
for  raising  it  before  mentioned,  without  warrant.  The  party 
raising  it  may  resort  to  the  constable  of  the  town  ;  and,  J.  Gire 
him  such  reasonable  assurance  thereof  as  the  nature  of  the  case 
will  admit.  2.  If  he  knows  the  name  of  the  person  who  did  it. 
he  must  inform  the  constable  of  it.  3.  If  he  does  not  know  him, 
but  can  describe  him,  he  must  describe  hisperson,  or  his  dress,  or 
his  horse,  or  whatever  circumstances  are  within  his  knowledge, 
which  may  condilce  to  his  discovery.  4.  If  the  offence  be  com- 
mitted in  the  night,  so  that  he  can  know  none  of  these  circum- 
stances, he  must  mention  the  number  of  the  persons,  or  the  way 
they  took.  5.  If  none  of  all  these  can  be  discovered,  as  where 
a  robbery,  or  burglary,  or  felony,  is  committed  in  the  night,  yet 
he  is  to  acquaint  the  constable  with  the  fact,  and  desire  him  to 
search  in  his  town  for  suspected  persons,  and  to  make  hue  anrl 
cry  after  such  as  may  be  probably  suspected,  as  being  persons 
TOgnuat  in  x&*  same  night;  f«rwany  rircuMVta'i^"-  nay. «  /»•«£ 


ARREST. 

o,  be  useful  for  discovering  a  malefacloi,  \vu:ch  cannot 
first  known.      Still  it  is  not  absolutely  m-cr^ary   that  the  con- 
stable should  be  called  in,  it  may  be  raised  without  him,  but  the 
most  regular  method  is  to  go  to  the  constable. 

2  Hale,  ioj.    3        jj  then   becomes    the  duty  of  the  consi.iMr.  whether  the 

Hawk.  c.  it.  *.  offender  is  certain  or  uncertain,  or  can  be  described  or  not,  to 
i  BUtk.i  om.  rajje  tne  power  of  the  town,  as  well  at  night  as  by  day,  and  give 
notice  to  the  constables  of  all  the  neighbouring  towns,  who  ougLl 
ia  like  manner  to  search  for  the  offender,  and  also  send  the  likf 
i.otice  until  he  is  found.  The  constable  may  search  suspected 
places  within  his  town,  for  the  purpose  of  apprehending  him. 
But  his  entry  must  be  by  the  doors  being  open  :  for  he  cannot 
break  open  doors  barely  to  search,  unless  the  person  a,. 
whom  the  hue  and  cry  is  levied  actually  be  there  ;  if  he  be  not 
there,  the  breaking  open  the  doors  is  not  justifiable.  But  as  has 
been  observed  before,  no  one  can  justify  the  breaking  open 
another's  doors,  unless  he  first  signify  to  those  in  the  house  the 
cause  of  his  coming,  and  request  them  to  gire  him  admittance. 
In  general,  the  constable  and  his  attendants,  in  the  prosecution 
of  such  hue  and  cry,  have  the  same  powers,  protection,  and  in- 
demnification, as  if  acting  under  the  warrant  of  a  justice  of  the 
peace.  The  person  who  wantonly  and  maliciously  raised  the 
hue  and  cry  shall  be  punished,  and  not  those  who  pursued  it. 

7  Hale,  102,  los.  So,  if  hue  and  cry  be  rai-ed  against  a  person  certain,  for  felony, 
though  he  may  possibly  be  innocent:  or  against  a  person  merely 
by  description  of  his  stature,  clothes,  horse,  and  the  like  :  or  on 
supposition  of  a  felony  committed,  though  in  truth  there  had 
been  no  felony  committed,  yet  those  who  follow  the  hue  anc 
«-ry  may  proceed  a?  if  tin-re  was  absolute  and  arrest 

and  imprison  the  person  in  the  common  jraol,  or  carry  him  to  a 
justice  of  the  peace,  to  be  examined  whore  Le  v.  .i-  at  i 
iVlony  committed,  &,c. 

?  i ;:,!«•.  ioi.  102.  Therefore,  the  justinYsitiosj  of  an  imprisonment  by  a  j 
upon  suspicion,  and  by  a  pei>on  •  o?pi  riaily  a  constable' 
'cue  and  cry  kvu>d.  are  extremely  uirterent:  for.  in  the  formtt 

-•-,  then'  must  be  a  felony  averred  to  b*:  done,  \\hifh  is  : 
hie  ;  but,  in  the  latter,  tlie  hue  and  cry  levied  upon  informal' 
a  fil.iny  i-  itself  sufficient,  although  the  information  sJ 

to  be  false.     The  reasons  of  the  distinction  are  thes> 
Because  the  constable  cannot  examin- 
or  falsehood  of  th  m  made  to  him  ;  and  ii 

!'H-ln>rir  his  pursuit  until  it  ne  examined  by  a 
the   lY-lon   mi^hr  t  i  tiie  pursuit  would  be  f i ; 

Because  the  constable  is  com>>r!l,tble  by  stutute  to  pursut 
and  !<»•  \<  punishable,  and  so  ;.r<   l;i.--ie  uhoui  he  • 
jaand?  to  accompany  him,  if  they  do  not.     3.   Because  he  that 

'  raises  a  hue  md  cry  where  no  felony  is  co; 
he  v  J,le. 


ARSON,  33 

V.   Wk'j.l  is  to  be  done  afitr  the  arrest. 

Where  a  private  person  has  arrested  a  felon,  or  one  suspected  1  Hal*-,  S39, 
of  fduny,  he  may  either  deliver  him  to  the  constable  to  carry  to 
a  justice  of  the  peace,  or  he  may  himself  carry  him  immedi- 
ately to  a  justice. 

"  ShwitFs  and  gaolers  shall  receive  from  any  constable  or  other 
officer,  without  taking  any  thing  therefor,  and  safely  keep  in 
prison  all  felons,  indicted  or  taken  in  the  fact,  who  shall  be  ta- 
ken by  any  constable  or  other  officer."  Sess.  36.  c.  68.  s.  12. 
1  R.  L.  4. 23. 

If  the  arrest  has  been  made  by  virtue  of  a  warrant,  the  officer  Jj^^'M"33'9. " 
is  forthwith  to  bring  the  party  according  to  the  direction  of  the 
warrant.  If  the  warrant  is  to  bring  the  party  before  the  justice 
who  granted  it,  the  officer  is  bound  to  bring  him  before  the 
srame'justice  ;  but  if  the  direction  be  to  bring  him  before  any 
justice  of  the  county,  it  is  then  in  the  election  of  the  officer  to 
bring  him  before  what  justice  he  thinks  fit,  and  not  in  the  elec- 
tion of  the  prisoner.  But  if  he  cannot  bring  him  before  the 
justice  at  a  seasonable  time,  as  if  it  is  near  or  during  the  night 
that  he  made  the  arrest,  or  if  there  is  danger  of  an  immediate 
rescue,  or  if  the  party  is  sick,  the  constable  may  secure  him  until 
the  next  day,  or  until  such  time  as  it  may  be  proper  to  bring 
him  before  the  justice  :  and  the,  law  considers  the  prisoner  in 
his  custody,  even  after  he  is  brought  before  the  justice,  until  the 
justice  discharge,  bail,  or  commit  him. 

A  constable  is  not  obliged  to  return  the  warrant  itself  to  the  Per  Holt.  CK..I. 
justice,  but  may  keep  it  for  his  own  justification,  in  case  he  should  ju-'gimTl!  w>. 
be  questioned  for  what  he  had  done,  and  need  only  give  the  »«-su.R»yni, 
justice  an  account  of  what  he  had  done  upon  it. 


ARSON. 

Arson  is  the  malicious  and  wilful  burning  of  the  house  or  out-   *  Black.  Com. 
house  of  another  man. 

The  wilful  burning  of  any  inhabited  dwelling-house  is  punish- 
able with  death.  Sess.  36.  c.  29.  s.  1.5.  1  R.  L.  407.  40D. 

The  wilful  burning  any  dwelling-housR  uninhabited,  or  any 
house  of  public  worship,  or  other  public  building,  or  any  barn, 
or  any  grist-mill,  is  punishable  with  imprisonment  in  the  state 
prison  for  a  term  not  more  than  14-  years.  Ibid. 

It  must  be  a  malicious  and  voluntary  burning,  otherwise  it  is  2  East,  P.  c. 
not  felony,  but  only  a  trespass,  and  therefore  no  negligence  or  jg^J.  "a^;{> 
mischance  amounts  to  it.     As  if  a  man  shooting  at  the  poultry  67. 
of  another,  happen  to  set  fire  to  the  thatch  of  a  house.     In  this 
••-is-":  h'Mvrvrr.  it  ?hon'-i  'joem  to  be  findt'vstond  tnat  be  did  not 


34-  ARSON. 

intend  to  steal  the  poultry,  but  merely  to  commit,  a  trr ••pa.-.?  , 
for  otherwise  the  first  intent  being  felonious,  the  party  must 
abide  all  the  consequences. 

a  Ea«t,  P.  c.  If  A.  have  a  malicious  intent  to  burn  the  house  of  B.,  and  in 

io».  3  Just.efi7.  setting  tire  to  it  burn  the  house  of  C.  as  well  as  of  13.,  or  the  house 

\  'p'iuw'/lrs'*'  °^  ^'  escaPe  ty  some  accident,  and  the  fire  burn  the  house  of 

C.,  though  A.  did  not  intend  to  burn  C.'s  house,  yet  in  law  it 

shall  be  said  to  be  a  malicious  and  wilful  burning  of  the  house 

of  C.     And  so,  says  Plou-den,  if  one  command  another  to  burn 

the  house  of  J.  S.,  and  he  do  so,  and  the  fire  thereof  burn 

another  house,  the  commander  is  accessory  to  the  burning  such 

other  house. 

2  Eait,  P.  c.          To  constitute  arson   there   must    be    an  actual  burning   of 

J6s°  i  FUw'k's    *^e  house,  or  of  some  part  of  it ;  though  it  be  not  necessary  that 

39. ».  4.    BUck.  any  part  be  wholly  consumed,  or  that  the  fire  should  have  any 

continuance,  but  be  put  out,  or  go  out  of  itself.     But  merely 

putting   fire  into  or  towards  a  house,  however  maliciously,  if 

either  by  accident  or  timely  prevention  the  fire  do  not  take,  and 

no  part  be  burned,  does  not  amount  to  arson. 

a  East,  P.  c.  The  term  house,  at  common  law,  extends  not  only  to  the 
467?*s7o.  3\a»t.  dwelling- house,  but  to  all  out-houses  which  are  parcel  thereof, 
07.69.  miwk.  though  not  adjoining  thereto,  nor  under  the  same  roof.  And 

o,  ->y.  s.  1, 2.     4  •" 

B!.  Com.  221.  yet  the  indictment  need  not  charge  the  burning  to  be  of  a  man- 
sion house,  but  only  of  a  house  As  to  what  constitutes  an  out- 
house to  be  parcel  of  the  dwelling-house,  see  title  BURGLARY. 
The  burning  of  a  barn,  though  no  part  of  the  mansion,  if  it  have 
corn  or  hay  in  it,  is  felony  at  common  law. 

4  ni.  Com.  221.       The  offence  of  arson  may  be  committed  by  wilfully  setting 

cro.  cnr.  377.  i  gre   to  one's  own  house,  provided  one's  neighbour's  house  is 

thereby  also  burnt;  but  if  no  mischief  is  done  but  to  one's  own, 

it  does  not  amount  to  felony,  though  the  ike  was  kindled  with 

intent  to  burn  another's. 

4  Bl.  Com.  221.       If  a  landlord  or  reversioner  sets  fire  to  his  own  house,  of 

tester,  us.         which  another  is  in  possession,  under  a  lease  from  himself,  or 

from  those  whose  estate  he  hath,  it  shall  be  accounted  arson; 

for,  during  the  lease,  the  house  is  the  property  of  the  tenant. 

2  Ea«t.  iocs.  2       If  a  tenant  set  fire  to  the  house  of  his  landlord,  before  the 

SUit,  P.  c.  loss,  tenancy  expires,  he   is  not  guilty  of  arson.     Nor  a  mortgagor 

in  possession,  who  burns  his  own  house. 

2  Kast,  p.  c.  But  a  mere  residence  in  the  house,  without  having  any  inte- 
rest therein,  is  not  sufficient,  as  where  a  pauper  was  put  by  the 
parish  officers  to  reside  in  a  house  hired  by  them,  in  which,  at 
the  time  of  his  burning  it,  he  wns  resident  with  his  family,  and 
had  the  sole  possession  and  occupation  of  it,  without  payment 
of  any  rent:  on  his  being  found  guilty,  the  conviction  was  held 
to  be  proper. 

Hi-  i'ev  v-       ^  one  I)C  '"dieted  f°r  burning  the  dwelling-house  of  another, 

y.m  Hiuri-.nii,     jt  is  suff;Cicnt  if  it  be,  in  fact,  the  dwelling-house  of  such  other 

person.     The  court  will  not  inquire  into  the  tenure  or  interest 


ASSAULT  AND  BATTEJiY.  ,;5 

such  person   has  in  the  house  burnt.     It  is  enough  it'  it 
was  his  actual  dwelling  at  the  time. 

Uut  though  arson  can  only  be  committed  by  burning  the  house  *  F-*»*-  r-  c- 

*  .  ,         J  °  .  1027.  1028.    4 

oJ  another,  yet  even  the  burning  ot  a  man  s  own  nouse  in  a  town,  BI. cum.  221. 
.or  so  near  to  other  houses  as  to  create  danger  to  them,  is  a  great  j0*oa4t'l>" 
misdemeanour,  and  may  be  punished  with  fine  and  imprisonment, 
and  finding  sureties.  In  some  cases,  the  indictment  has  laid  the 
fact  to  be  with  intent  to  burn  such  other  houses :  but  however 
such  an  intent  may  aggravate  the  offence,  it  is  clearly  not  neces- 
sary to  be  laid  or  proved  :  such  an  act  must,  in  its  nature,  create 
great  terror  and  danger  to  the  neighbourhood,  be  the  intent  what 
it  may.  It  i»  also  a  great  aggravation  if  one  burn  his  own  house, 
in  any  situation,  with  intent  to  defraud  insurers  :  but  Mr.  East 
observes,  that  he  can  find  no  instance  of  an  indictment  sustaiued 
on  that  ground  alone  as  the  gist  of  the  offence. 


ASSAULT  AND  BATTERY. 

I.   What  is  an  assault. 
II.    What  a  battery. 

III.  When  they  may  be  justified. 

IV.  How  punished. 

V.  Assault  with  felonious  intent. 
VI.  Mayhem. 

I.   What  is  an  assault. 

An  assault  is  an  attempt  or  offer,  with  force  and  violence,  to  do  i  '••a-'t. 
a  corporal  hurt  to  another,  whether  from  malice  or  wantonness  ;  as   c.  gj. , 
by  striking  at  him  with  or  without  a  weapon,  or  even  by  holding 
up  one's  fist  at  him  in  a  threatening  or  insulting  manner,  or  with 
such  other  circumstances  as  denote   at  the  time  an  intention, 
coupled  with  a  present  ability,  of  using  violence  against  his  person  ; 
as  by  presenting  a  gun  at  him,  within  the  distance  which  it  will 
carry,  or  pointing  a  pitch  fork  at  him  while  standing  within  the 
reach   of  it.     But   no  words,  however  provoking,  can  amount  to 
an  assault. 

II.   What  a  battery. 

Where  the  injury  is  actually  inflicted  it  amounts  to  a  battery  ;  \  v.w.  r 

and  this,  however  small  it  may  be,  as  by  spitting  in  a  man's  face,  *° *-2 lf** 
or  any  way  touching  him  without  any  lawful  occasion,  in  an  angry, 
revengeful,  rude,  or  insolent  manner. 

One  charged  with  an  assault  and  battery,  may  be  found  guilty  l  Hawk, 

of  the  assault,  and  yet  acquitted  of  the  battery  :  but  every  battery  6-*-  »•  *• 
includes  an  assault ;  and  therefore,  on  an  indictment  of  assault  and 


36  ASSAULT  AND  BATTERY. 

hatterj,  in  which  the  assault  is  ill  laid,  if  the  defendant  be  i'uunu 
guilty  of  the  battery,  it  is  sufficient. 

III.   When  they  may  le  justified. 

i  Bac.  Abr.  All  matter  of  excuse  or  justification  may,  on  an  indictment  for 
assault  and  battery,  be  given  in  evidence  under  the  general  issue, 
"  not  guilty  ;"  whereas,  in  a  civil  action  for  trespass,  matter  of  jus- 
tification must  be  pleaded. 

; 45/2^16.  |  ^  an  officer  has  arrested  a  man,  who  then  makes  resistance,  or 
H«'k'  c' 63<  endeavours  to  rescue  himself,  and  is  compelled  to  beat  him,  he 
may  justify  it.  So  if  a  parent  in  a  reasonable  manner  chastise 
his  child,  or  a  master  his  apprentice,  or  a  schoolmaster  his  scholar  ; 
or  if  one  confine  a  friend  who  is  mad,  and  bind  and  beat  him,  in 
such  a  manner  as  is  proper  in  his  circumstances ;  or  if  a  man 
forces  a  sword  from  one  who  offers  to  kill  another  ;  or  if  a  man 
gently  lay  his  hands  on  another,  and  thereby  stay  him  from  inti- 
cing  a  dog  against  a  third  person  ;  or  if  a  man  beat  or  even  wound 
or  maim  one  who  makes  an  assault  upon  his  person,  or  that  of  his 
wife,  child,  parent,  or  master,  especially  if  it  appear  that  he  did  all 
he  could  to  avoid  fighting  before  he  gave  the  wound;  or  if  a  man 
fight  with  or  beat  one  who  attempts  to  kill  a  stranger;  or  restrain 
those  whom  he  sees  fighting  until  their  heat  is  over:  in  all  these 
cases  he  may  justify  the  assault  and  battery. 

*er'  ^°  ^a  man>  with°ut-  authority,  attempt  to  arrest  another  illegally, 
it  is  a  breach  of  .the  peace,  and  any  other  person  may  lawfully 
interfere  to  prevent,  doing  no  more  than  is  necessary  for  that 
purpose :  and  these  circumstances  Avill  furnish  a  justification  for 
an  assault. 

mawk.c.ei.        g0  jfa  man  endeavQur  with  violence  to  dispossess  me  of  my 
vy,  aver  v.      poods,  or  the  goods  of  another,  delivered  to  me  to  be  kept  for 
p.'u.Vs. crm   him:  or  where  a  man  with  actual  violence  enters  upon  the  land 
of  another,  he  may  resist  him  by  force. 

IV.  How  punished. 

•uiwk.c.  62.       .Every  person  guilty  of  an  assaulter  battery,  is  subject  both  to  an 

i  Bac.  Abr.   action  at  the.  suit  of  the  party,  and  also  to  an  indictment  at  the  suit 

;'•'•  .Jongs£   of  the  people,  wherein  he  shall  be  fined  according  to  the  h.einous- 

:   M>I.  ness  of  the  offence  ;  and  the  party  may  proceed  at  the  same  time 

both  civilly  and  criminally,  nor  will  he  be  compelled  to  make  his 

election  to  pursue  either  the  one  or  the  other. 

A  method  has  been  pointed  out  by  the  legislature,  by  which  the 
prosecutor,  in  assault  and  battery,  and  certain  other  cases,  may  put 
a  stop  to  the  public  prosecution  on  receiving  satisfaction  :  it  is 
enacted,  "  That  in  all  cases  where  a  person  shall,  on  the  complaint 
of  another,  be  bound  Uy  recognisance  to  appear,  or  shull  for  want 


ASSAULT  AND  BATTERY.  37 

of  surety  be  committed,  or  shall  he  indicted  for  a«  assault  and 
battery,  or  other  misdemeanour,  to  the  injury  and  damage  of  the 
party  complaining,  and  riot  charged  to  have  been  done  riotously,  or 
with  intent  to  commit  a  felony,  or  not  heing  an  infamous  crime, 
and  for  which  there  shall  also  he  a  remedy  by  civil  action,  if  the 
party  complaining  shall  appear  before  the  magistrate,  who  may  have 
taken  the  recognisance  or  made  the  commitment,  or  before  the 
court  in  which  the  indictment  shall  be,  and  acknowledge  to  have 
received  satisfaction  for  such  injury  and  damage,  it  shall  be  law- 
ful for  the  magistrate,  in  his  discretion,  to  discharge  the  recogni- 
sance, or  supersede  the  commitment,  and  also  to  discharge  the 
renognisance  which  may  have  been  taken  for  the  appearance  of 
witnesses  in  such  case,  or  for  the  court  also  in  their  discretion  to 
order  a  noli  prosequi  to  be  entered  on  the  indictment,  as  the  case 
may  require,  upon  payment  of  costs;  Provided  alivays,  that  thi* 
act  shall  not  extend  to  any  assault  and  battery,  or  other  misde- 
meanour, committed  by  or  on  any  officer  or  minister  of  justice." 
Sess.  So.  c.  8.  s.  19.  1  R.  L.  4-99. 

"  No  justice  of  the  peace  shall  be  obliged  to  issue  any  warrant 
on  any  complaint  for  a  trespass  or  assault  and  battery,  or  either  of 
them,  unless  the  person  m.'iking  such  complaint,  and  requiring  such 
warrant,  and  everjr  person  recognised  as  principal,  before  any 
such  justice  for  said  offences,  shall  pay  the  fees  to  the  justice  for 
taking  such  recognisance."  Sess.  j6.  c.  104.  s.  7.  2  R.  L.  508. 

"  No  board  of  supervisors  shall  credit  and  allow  any  account  in 
favour  of  any  justice  of  the  peace,  for  any  process  or  proceedings 
on  any  such  complaint  as  is  mentioned  in  the  preceding  section 
ef  this  act."  s.  8. 

V.  Assault  with  felonious  intent. 

Every  person  who  shall  be  convicted  of  any  assault,  with  intent 
to  rob,  murder,  or  commit  a  rape,  and  accessories  before  the  fact, 
shall,  on  conviction,  be  punished  by  fine  or  imprisonment,  or  both  ; 
or  the  court  may,  in  their  discretion,  instead  of,  or  in  addition  to, 
a  line,  adjudge  the  person  convicted,  to  imprisonment  in  the  slate 
prison,  for  any  term  of  time  not  exceeding  7  years;  and  any  per- 
son who  shall  be  a  second  time,  or  oftener,  convicted  of  any  of  the 
said  offences,  shall  in  like  manner  be  adjudged  to  imprisonment 
in  the  said  prison,  for  any  time  not  exceeding  H  years.  Sess.  3C». 
«:.  29.  s.  9.  1  R.  L.  4(W. 

VI.  Mayhem* 

Mayhem  is  properly  defined  to  be  the  violently  depriving  4  Bl.  Com. 
another  of  the  use  of  such  of  his  members  as  may  render  him  the  j^  2p6-  c  l 
less  able  in  fighting,  either  to  defend  himself  or  to  annoy  his  adver-  *«.  i  Ha«i'. 

c.  44.5.1,2,3. 


38  ASSAULT  AND  BATTERY. 

sar,y.  And  therefore  the  cutting  off,  or  disabling,  01  weakening  a 
man's  hand,  or  linger,  or  striking  out  his  eye  or  fore-tooth,  or 
castrating  him,  arc  held  to  be  mayhems.  But  the  cutting  off  his 
car,  or  nose,  or  the  like,  are  not  held  to  be  mayhems  at  common 
law  ;  because  they  do  not  weaken,  but  only  disfigure  him.  At  com- 
mon law  this  offence  is  considered  as  an  aggravated  trespass,  and 
is  punishable  by  fine  and  imprisonment. 

b.°i  liuH.',4u!  A  Inan  Claiming  himself  is  punishable  at  common  law ;  as  where 
a  person,  to  have  more  colour  to  beg,  caused  his  companion  to 
strike  off  his  left  hand,  they  were  indicted  and  fined. 

"If  any  person  shall  on  purpose,  and  of  malice  aforethought, 
Cut  out  the  tongue,  or  put  out  the  eyes  of  any  other  person  ;  or  if 
any  person  shall  on  purpose,  and  of  malice  aforethought,  and  by 
lying  in  wait,  unlawfully  cut  out,  or  disable  the  tongue,  put  out  an 
eye,  slit  the  nose  or  lip,  or  cut  ofTor  disable  any  limb  or  member  of 
any  other  person,  with  intention  in  so  doing  to  murder  or  kill,  or  to 
maim  or  disfigure,  in  any  the  manners  aforesaid,  such  other  per- 
son, every  such  offence  shall  be  deemed  and  adjudged  felony; 
and  every  person  so  offending,  and  every  person  who  shall  aid,  &tc. 
beJLg  thereof  convicted  or  attainted,  shall  be,  and  hereby  are, 
declared  to  be  felons."  Sess-  24.  e.  53.  1  R.  L.  108. 

Offenders  under  this  act  are  punishable  with  imprisonment  for 
life  in  the  state  prison.     Sesa.  36'.  c.  2y.  s.  3.     I  R.  L.  4-08. 

•^"'"ifi'  a'         ^  does  not  seem  necessary  that  the  malicious  intention  should 

*'a't,  P.  c.  be  directed  against  any  particular  individual.  If  it  be  conceived 
against  all  persons  who  may  happen  to  fall  within  the  scope  of  the 
perpetrator's  design,  the  particular  mischief  done  to  any  one  shall 
be  connected  with  the  general  malignant  intent,  so  as  for  the 
statute  to  attach  upon  the  offenders.  So  if  a  blow  be  intended  to 
maim  one,  and  by  accident  maim  another,  the  party  is  equally 
liable  to  be  indicted  for  such  maim. 

V"n'!-'P'  C'  Although  a  person  h«  maimed  or  disfigured  maliciously,  y*tthe 
rase  will  not  fall  within  the  second  branch  of  the  statute,  or  if  any 
person  shall,  Sfc.  by  lying  in  wait,  Sfc.  unless  the  offender  lie  in 
wv.il  for  that  purpose  ;  where,  however,  there  is  no  express  evi- 
dence of  the  intent,  it  may  be  inferred  from  circumstances.  But 
where  the  injury  arises  out  of  a  sudden  attack  made  by  the  de- 
fendant, but  unconnected  with  any  premeditated  design  upon  the 
person,  it  is  not  within  the  statute. 

A.,;,  i.p.-ioi.  It  no  where  appears,  says  Mr.  East,  that  there  can  be  accesso- 
ries after  the  fact  in  mayhem. 

i  Ea«.  P.  r.        jt  seems  that  son  assault  demesne  is  a  good  defence.     Yet  it  is 

•m.  2  Hawk.  ......     f       .  ,  . 

r  js.s.  23.  i    not  every  trifling  assault  that  will  justify  a  grievous  and  immediate 

;'-'r.d  uM^d".   ma)'nem'  sucn  as  cutting  off  a  leg  or  hand,  or  biting  off  a  joint  of 

•»•*•  '   a  man's  finger,  unless  it  happened  accidentally,  without  any  cruel 

and  malignant  intention,  or  after  the  blood  was  heated  in  the  scuffle  : 

but  it  must  appear  that  the  assavilt  WMS,  in  some  degree,  proper- 


BAIL.  39 

tionable  to  the  mayhem.  But  a  man  cannot  justify  maiming 
another  in  defence  of  his  possessions,  but  only  in  defence  of  his 
person.  This  restriction,  however,  cannot  be  intended  to  extend 
to  cases  where  a  man  defends  himself  against  a  known  felony 
threatened  to  be  committed,  with  violence  against  «ven  his 
property. 


ATTORNIES. 

If  any  counsellor,  attorney,  or  solicitor,  be  guilty  of  any  manner 
of  deceit  or  collusion,  or  consenting  thereto,  whereby  tu  deceive 
the  court  or  the  party,  he  shall  be  punished  by  fine  and  impri- 
sonment ;  besides  an  action  to  the  party  grieved,  in  which  he 
shall  recover  treble  damages  and  costs.  Sets.  36.  c.  48.  s.  0.  1  R- 
L.  417. 

If  any  attorney  of  the  supreme  court,  OF  of  any  court  of  com- 
mon pleas,  shall  purchase  or  receive,  by  way  of  pledge  or  security 
for  money  lent,  any  bond,  note,  or  other  writing,  with  intent  to 
commence  a  suit  thereon,  and  shall  commence  such  suit  accord- 
ingly, every  such  attorney  shall  be  deemed  guilty  of  a  misde- 
meanour, s.  7. 

An  attorney  or  counsellor  may  be  sued  before  a  justice  of  the 
peace  for  the  recovery  of  a  debt  or  demand  to  the  amount  of  25 
dollars  or  under,  unless  it  shall  appear  that  the  court  wherein  he 
shall  be  attorney  or  counsellor  shall  be  thes  sitting.  Sess.  3d.  c. 
96.  a.  8.  1  R.  L.  345. 


BAIL. 

I.  What  it  is. 

II.  When  a  person  may  le  discharged  without  iai7. 

III.  When  and  by  whom  bail  may  be  taken. 

IV.  Recognisance  and  sureties. 

V.   Offences  in  taking  or  denying  6<w'?. 
VI.  Acknowledging  bail  in  another  men's  ite'me. 

L   What  it  is. 

Bail  is  a  delivery  or  bailment  of  a  person  to  his  sureties,  upon  4  Biick.com. 

their  giving,  together  with  himself,  sufficient  security  for  hia  ap-  ^>.7'  Bc^|°Vr 

pearance  :  he  cither  actually,  or  in  supposition  of  law,  continuing  eSkrf.?]!. 
ia  thejr  friend'y  t-iMody.  instead  oPgoiup:  to  gao),  and  they  ought 


40  BAN,. 

to  keep  him  in  sncli  manner  as  to  be  ready  <o  appear  at  a  ti; 
signed,  or  otherwise,  to  answer  for  him  ;  if  they  let  him  go  at 
large,  they  may,  to  discharge  themselves,  restize  him  and  luing: 
him  before  a  justice  to  find  new  bail,  or  to  be  committed  to  pri- 
son ;  nor  in  such  a  case  does  Sunday  privilege  him  from  being 
taken  by  his  bail. 

II.   Where  a  person  may  be  discharged  without  bail. 

4Bl3ck.Com.       When  a  person  is  brought  before  a  justice,  and  it  appears  upon 

Babcock,  /'  examination,  either  that  no  crime  was  committed,  or  that  the  sus- 

Joh<)s.   iup.  picion  entertained  of  the  prisoner  was  wholly  groundless,  in  such 

vidi- Commit-  cases  only,  it  is  lawful  totally  to  discharge  him.     Otherwise  he 

ment,i.  must  either  be  committed  to  prison  or  give  bail. 

III.   When  and  by  whom  bail  may  be  taken- 
4  Biaok.Coin.        By  the  ancient  common  law  all  felonies  were  bailable  ;  and  as 

238.  2  Hawk.  .     ., 

e.  15. «.  54.  respects  those  by  whom  bail  may  be  taken,  the  general  rule  ap- 
pears to  be,  that  so  far  as  any  persons  are  judges  of  any  crime,  so 
far  they  have  the  power  of  bailing  any  person  indicted  before  them 
for  any  such  crime. 

Sest.   36.  c.        A  justice  of  the  peace  may  bail  in  cases  of  petty  larceny,  mis- 

•3.  R.  L.  ios!   demeanour,  breach  of  the  peace,  or  other  ciiminal  offence  under 

amic.18.  s.  7.  tile  degree  of  grand  larceny.     And  courts  of  general  sessions  of 

ittmJ.  s.  3.     '  the  peace,  or  any  two  justices  of  the  peace  jointly, out  of  sessions-, 

may,  by  their  discretion,  let  to  bail  prisoners  arrested  and  in  gaol, 

in  their  respective  cities  and  counties,  for  suspicion  of  felony,  to 

appear  at  the  next  court  having  cognizance  of  the  offence,  ami 

where  the  prisoner  ought  to  be  tried. 

a  Hawk.  e.  u.  Those  who  on  their  examination  own  themselves  guilty  of  the 
felony  alleged  against  them,  and  are  charged  in  their  mittimus 
with  the  felony  so  confessed,  arc  excluded  from  bail ;  for  bail  i* 
only  proper  where  it  stands  indifferent  whether  the  party  be 
guilty  or  innocent  of  the  accusation  against  him,  as  it  often  docs 
before  his  trial ;  but  where  that  indifference  is  removed,  it  would, 
generally  speaking,  be  absurd  to  bail  him. 

2  Hawk.  0.15.  A  justice  of  the  peace  may  always,  in  his  discretion,  either  bail 
or  imprison  one  who  has  given  another  a  dangerous  wound,  ac- 
cording as  it  shall  appear  from  the  whole  circumstances  whether- 
the  party  wounded  will  most  likely  live  or  die  ;  for  every  justice 
being  a  principal  conservator  of  the  peace,  the  offence  being,  be- 
fore the  death  of  the  party,  only  an  enormous  breach  of  it,  and 
no  felony,  seems  properly  to  come  under  his  cognizance. 

It  is  hardly  necessary  to  observe,  that  criminals  after  conviction, 
or  persons  committed  for  contempt  of  u  superior  court,  cannot 
lie  bailed  by  a  justice  of  the  peace. 


BAIL.  41 

Sheriffs  and  gaolers  cannot  baH  persons  in  custody  by  virtue  of 
any  process  for  treason  or  felony,  or  committed  by  special  order 
of  any  court  or  justice,  under  pain  of  fine  and  imprisonment,  and 
answering  in  damages  to  the  party  aggrieved.  Sess.  36.  c.  6v .  s. 
13.  *R.  L.  423. 

IV.  Of  the  recognisance  and  sureties. 

The  number  of  the  bail,  and  the  sum  in  the  recognisance,  is  Com.  pig. 
much  in  the  discretion  of  hhn  who  is  to  take  the  bail.     It  must   i  Bae.  Abr. 
be  by  recognisance,  and  that  the  principal  shall  appear  at  the  next  i2°'J226Hale 
s*ssions,  or  oyer  and  terminer,  and  the  time  for  which  it  is  taken 
must  be  certain.     Where  the  principal  cannot  join  in  the  recog- 
nisance, as  when  he  is  an  infant,   or  in  prison,    the  recognisance 
may  be  taken  of  the  bail  only  ;  and  the  justice,  or  justices,  grant  a 
warrant  under  their  hands  and  seals  to  discharge  the  prisoner 
out  of  gaol. 

It  seems  to  be  agreed  that  no  person  ought,  in  any  case,  to  be  2  Hawk.  c. 
bailed  for  felony  by  less  than  two  sureties  ;  and  the  justice  should  1S>  "'  *' 
take  care  that  every  one  of  the  bail  be  of  ability  sufficient  to  an- 
swer the  sum  in  which  they  are  bound,  which  is  to  be  determined 
according  to  the  discretion  of  the  magistrate,  upon  consideration 
of  the  ability  and  quality  of  the  prisoner,  and  the  nature  of  the 
offence.     And  if  it  shall  seem  doubtful  whether  the  persons  who 
offer  themselves  to  be  sureties  be  able  to  answer  such  sum,  it  is 
said  that  the  person  who  is  to  take  the  bail  may  examine  them  on 
their  oaths  concerning  their  sufficiency. 

If  a  person  who  has  power  to  take  bail  be  so  far  imposed  upon  2  Hawk.  c. 
as  to  suffer  a  prisoner  to  be  bailed  by  insufficient  persons,  he,  or   15<8>4- 
any  other  person  who  has  power  to  take  bail,  may  require  the 
party  to  find  better  sureties,  and  to  enter  into  a  recognisance 
with  them,  and  may  commit  him  on  his  refusal,  for  insufficient 
sureties  are  no  sureties.     But  under    pretence  of    taking    suffi-  4BJack.Com. 
cient  surety,  the  justice  must  not  require  bail  to  a  greater  amount  2y7> 
than  the  nature  of  the  case  warrants,  which  may  in  effect  amount 
to  a  denial  of  bail :  it  is  expressly  declared,  that  "  excessive  bail  Amendment* 
shall  not  be  required  ;"  though  what  bail  shall  be  called  excessive  c>  us-art- 8- 
must  be  left  to  the  courts,  on  considering  the  circumstances  of 
the  case,  to  determine. 

V.  Offences  in  taking  or  denying  bail. 

If  the  party  bailed  by  insufficient  sureties  do  not  appear  accord-  2  Hawk.  «. 
ing  to  the  condition  of  the  recognisance,  the  justice  who  bailed   15>$-6- 
him  is  finable  ;  but  if  he  do  appear,  the  justice   is  excused,  in- 
asmuch as  the  end  of  the  law  is  answered,  and  the  appearance  of 
the  prisoner  as  effectually  procured  by  such  sureties  as  if  they  had 
been  ever  so  sufficient. 

The  balling  of  a  person  who  is  not  bailable  by  law,  IF  ViUnish-  2  Hawk.  c. 

r  6  i  u.s.:.JZ,- 


42  BANK   NOTE*. 

as  a  negligent  escape.  It  is  no  excuse  (or  just 
peace  admitting  a  person  to  bail,  who  was  in  truth  committed  for 
a  cause  not  bailable  by  law,  that  they  did  not  know  that  he  was 
committed  for  such  cause,  and  that  no  other  cause  of  his  commit- 
ment was  mentioned  in  hi?  mittimus,  but  the  suspicion  of  felony  : 
for  they  ought  at  their  peril  to  inform  themselves  of  the  cause  for 
which  the  party  was  committed,  that  they  may  be  satisfied  that  he 
is  bailable  by  law. 

2  H»»k.  c.  The  denying,  delaying,  or  obstructing  bail,  when  it  ought  to  be 
is.  s.  13,  14.  granted,  is  a  misdemeanour,  and  punishable,  not  only  by  action  at 
the  suit  of  the  party  wrongfully  imprisoned,  but  also  by  indict- 
ment. But  the  justice  is  not  bound  to  demand  sureties  of  the 
party,  and  forbear  committing  him  till  he  shall  refuse  to  find 
them,  but  may  justify  his  commitment  unless  the  party  himself 
shall  offer  his  sureties. 

VI.  Acknowledging  bail  in  another  mail's  name. 

.:!  anil  every  person  and  persons  who  shall  acknov 
procure  to  be  acknowledged,  any  fine  or  fines,  recovery  or  reco- 
veries, deed  or  deeds,  recognisance  or  recognisances,  bail  or 
bails,  judgment  or  judgments,  in  the  name  or  names  of  any  other 
person  or  persona  not  privy  or  consenting  to  the  same,  and  all  and 
every  person  or  persons  who  shall,  before  any  person  or  persons 
authorized  to  take  bail  or  bails,  represent  or  personate  any  other 
person  or  persons,  whereby  the  person  or  persons  so  represented 
or  personated  may  be  liable  to  the  payment  of  any  sum  or  sums 
of  money,  for  debt  or  damages,  to  be  recovered  in  the  same  suit 
or  action  wherein  the  person  or  persons  are  represented  or  per- 
sonated, as  if  he  or  they  had  really  acknowledged  and  entered  into 
the  same  bail  or  bails,  being  lawfully  convicted  or  attainted  there- 
of, shall  be  adjudged  guilty  of  felony."  Sess.  1  I.e.  21.3.1.  i 
R.  L.  in. 

But  the  act  does  not  extend  to  judgments  acknowledged 
attorney  of  record,     s.  2. 

2  EMI,  P.  c.  It  has  been  holden  that  the  bare  personating  bail,  or  the  acknow- 
Hawk.  c.  45.  ledging  thereof  in  another  name,  is  no  felony  unless  the  bail  be 
filed,  but  only  a  misdemeanour.  Where  bail  was  put  in  under 
feigned  names,  there  being  no  such  persons,  it  was  holden  not  to 
be  within  the  ?ct:  btili  it  is  a  misdemeanour,  and  subjects  the 
party  to  punishment. 


BANK  NOTEfc. 

-    _Vo   -i  _;...-•;  «?r  persons  whomsoever,  within  this  state,  shall 
^r  receive  in  payment  of  any  debt  or  demand  whatsoever, 
L-S-  in  any  way  attempt  or  offer  to  circulate  any  bank  bill  or  pro- 
v  not':  of  any  banking  company  within  this  state,  or 


BASTARD.  4S 

where,  for  the  payment  of  money,  which  shall  be  for  less  than  the 
nominal  value  of  ono  dollar  ;  and  any  person  offending  against  this 
act,  either  as  giver,  receiver,  or  circulator,  of  such  hank  bill  or 
promissory  note,  shall  forfeit  and  pay  the  nominal  amount  and 
value  of  such  bank  bill  or  promissory  note,  so  given  or  received, 
or  attempted  or  offered  to  be  circulated,  to  be  recovered,  with 
costs  of  suit,  in  any  court  within  this  state  having  cognizance 
thereof,  by  action  of  debt,  by  any  person  who  will  sue  for  the 
same,  to  his  or  her  own  use  :  Provided,  that  such  suit  or  action 
be  brought  or  commenced  at  any  time  within  thirty  days  aftc/ 
the  offence  be  done  and  committed."  Sess.  36.  c.  71.  s.  1.  C 
R.  L.  234-. 


.  BASTARD. 

1 .    Who  shall  be.  deemed  a  bastard. 
II.   Of  apprehending  and  taking  security  from  the  reputed 

father 

III.   Order  of  filiation  and  maintenance  by  the  justices. 
TV.  Appeal  against  the,  order. 
V.  Mother  or  reputed  father  running  away. 

I.   Who  shall  be  deemed  a  bastard. 

All  persons  born  out  of  lawful  matrimony  are  bastards,  although   CD.  Lut.  244. 
•he  parents  are  afterwards  legally  married.     Also,  if  a  man  mar-  uamni,  <AO 
ries  a  second  wife  during  the  life  of  the  former,  their  issue  will  be  ^l!£!yCom' 
bastards  ;  because  the  second  marriage  is  void.     So  also  if  there 
is  an  apparent  impossibility  of  procreation  on  the  part  of  the  hus- 
band, as  if  he  be  only  eight  years  old,  or  the  like,  there  the  issue  of 
the  wife  shall  be  bastards  ;  or  if  the  husband  is  not  in  the  country  at 
such  time  that  the  issue  can  be  begotten  by  him  ;  or  if  it  is  born 
such  a  length  of  time  after  his  death  that  it  cannot  be  his  issue. 

If  the  husband  is  in  the  country,  or,  according  to  the  technical   ^otn-     ^; 
phrase  of  the  English  law,  within  the  four  seas,  it  was  formerly   str.  pzsliOTt .'. 
held  that  no  proof  of  non-access  to  his  wife  was  admissible,  but 
that  the  child  in  all  cases,  except  those  above  mentioned,  was  legi- 
timate.    A  contrary  rule  is,  however,  now  established,  and  the 
fact  whether  the  husband  had  access  to  his  wife  or  not,  may  be 
given  in  evidence,  as  well  as  every  other  kind  of  evidence  which 
tends   to  show  the  impossibility,  or  probability,  of  the  husband's 
being  the  father. 

As  for  instance,  in  one  case,  the  son's  having  taken. a  different   Gom'rigM  -• 
name  from  that  of  his  mother's  husband,   which  he  and  his  de-   ?,a"''-««erni 

Jl\vp-  *Mw» 

ecendanta  had  retained,  was  considered  as  a  very  forcible  circum- 
stance, being  a  family  recognition  of  his  illegitimacy. 


44  BASTARD. 

i  RUck.com.  Access  will,  in  the  first  instance,  be  presumed,  unless  the  con* 
trary  can  be  shown.  It  was  formerly  held,  that  if  the  husband  was 
present  at  any  time  during  the  pregnancy,  the  issue  was  legiti- 
i  Mod. 419.  mate  :  but  a  more  reasonable  rule  is  now  adopted  ;  and  if  it  ap- 
pear that  the  husband  had  no  access  at  such  time  before  the  birth 
that  the  issue  could  by  any  possibility  be  his,  it  shall  be  adjudged 

8l£ast"  lasT1'*  illegitimate;  as  where  he  had  no  access  until  a  fortnight  before 
delivery. 

The  evidence  of  the  wife  alone,  as  to  the  fact  of  non-access,  is  not 
sufficient,  but  there  must  be  other  evidence  of  it.  In  the  case  last 

s  EMI,  is3.  cited,  Lord  XXlenborough,  Ch.  J.  observes,  "that  this  objection  is 
grounded  upon  a  principle  of  public  policy,  which  prohibits  the  wife 
from  being  examined  against  her  husband  in  any  matter  affecting 
his  interest  or  character,  unless  in  cases  of  necessity,  where,  from 
the  nature  of  the  thing,  no  other  witness  can  probably  have  beeo 
present :  but  exceptions  of  that  sort  have  been  established,  and 
that  it  is  necessary,  and  on  that  account  allowable,  to  examine 
her  as  to  the  fact  of  her  criminal  intercourse  with  another,  has 
been  held  by  various  judges  at  different  periods  ;  for  this  is  a  fact, 
which  must  probably  be  within  her  own  knowledge  and  that  of 
the  adulterer  only.  And  by  a  parity  of  reasoning  it  should  seem, 
that  if  she  be  admitted  as  a  witness  of  necessity  to  speak  to  the 
fact  of  the  adulterous  intercourse,  it  might  also  perhaps  be  com- 
petent for  her  to  prove  that  the  adulterer  alone  had  that  sort  of 
intercourse  with  her  by  which  a  child  might  be  produced  within 
the  limits  of  time  which  nature  allows  for  parturition.  Certainly, 
however,  it  is  competent  for  her  to  prove  the  fact  of  her  connex- 
ion with  that  person  whom  she  charges  as  being  the  real  father  of 
her  child." 

ilex  v.  iniia-       The  husband  being  found  to  have  gone  beyond  seas  above  two 

Makhtonef      years  before  the  birth  of  a  child    borne   by  his  wife,  she  remain- 

\i  Jtast,  i'jo.  ing  at  home  ;  the  conclusion  is  irresistible,  that  such  child  is  a 
bastard. 

As  a  person  guilty  of  adultery,  who  is  divorced  on  that  account, 
cannot  marry  again,  his  or  her  children  after  the  divorce  must 
consequently  be  bastards ;  but  it  does  not  affect  the  legitimacy  of 
the  previous  children  of  the  marriage.  Sess.  3d.  c.  102.  s.  4. 
L'R.  L.  198. 

8  East,  193.  Where  the  parents  have  married  so  recently  before  the  birth  of 
the  child,  that  it  could  not  have  been  begotten  during  wedlock, 
the  child  is  notwithstanding  legitimate  ;  for  the  marriage  under 
such  circumstances  is  the  criterion  adopted  by  the  law  to  ascer- 
tain the  actual  parentage  of  the  child  ;  it  is  an  acknowledgment 
by  the  husband  that  the  child  is  his.  Still  if  there  appear  to 
be  an  impossibility  that  the  child  could  have  been  begotten  by 
him,  it  will  be  a  bastard,  as  in  Foxcroffs  case,  (1  RoL  Mr.  339.) 
an  infirm  bed  ridden  man  was  married  to  a  woman  who  in  twelve 
weeks  after  was  delivered  of  a  son,  and  the  issue  was  adjudged 
a  bastavd. 


BASTARD.  45 

A  posthumous  child  shall  not  be  a  bastard,  if  bocn  within  forty  Co.  Lit*.  123 
weeks  after  the  death  of  the  husband  ;  this  is  agreed  to  be  the  ^"'  ws?'*" 
usual  period  of  gestation,  but  a  longer  space  may  be  allowed 
when  the  circumstances  of  the  case  require  it;  so  that  a  child 
has  been  allowed  to  be  legitimate  bom  nine  months  and  twenty 
days  after  the  death  of  the  father  ;  but  when  the  child  was  born 
eleven  days  after  the  forty  weeks,  and  the  husband  had  no  access 
to  his  wife  for  a  month  before  his  death,  it' was  presumed  to  be 
illegitimate.  Where  a  woman  married  a  second  husband  imme- 
diately after  the  death  of  the  first,  and  had  issue  forty  weeks  and 
eleven  days  after  the  death  of  the  first  husband,  it  was  held  to  be 
the  issue  of  the  second  husband.  But  where  a  woman  was  de- 
livered of  a  child  forty  wreeks  and  ten  days  after  the  death  of  her 
husband,  the  child  was  adjudged  legitimate. 

If  a  man  dies,  and  his  Avidow  soon  after  marries  again,  and  a  Co.  Litt.  sa. 
child  is  born  within  such  time,  as  that  by  the  course  of  nature  it 
might  have  been  the  child  of  either,  he  is  said  in  this  case  to  be 
more  than  ordinarily  legitimate,  and  when  he  arrives  at  years  of 
discretion,  may  choose  which  shall  be  his  father. 

II.   Of  apprehending  and  taking  security  from  the  reputed  father. 

"  If  any  woman  shall  be  delivered  of  a  bastard  child,  which 
shall  be  chargeable,  or  likely  to  become  chargeable,  to  any  city 
or  town,  or  shall  declare  herself  to  be  with  child,  and  that  such 
child  is  likely  to  be  born  a  bastard,  and  to  be  chargeable  as  afore- 
said, and  shall  in  either  case,  in  an  examination,  to  be  taken  in 
writing  upon  oath,  before  any  justice  of  the  peace  of  any  city  or 
of  any  county  wherein  such  town  shall  be,  charge  any  person  with 
having  gotten  her  with  child,  it  shall  be  lawful  for  such  justice, 
upon  application  made  to  him  by  the  overseers  of  the  poor  of 
such  city  or  town,  or  persons  acting  as  such,  or  by  any  one  of 
them,  to  issue  his  warrant  for  the  apprehending  such  person  so 
charged  as  aforesaid,  and  for  bringing  him  before  such  justice,  or 
before  any  other  justice  of  the  peace  of  such  city  or  county  ;  and 
the  justice  before  whom  such  person  shall  be  brought,  is  hereby 
authorized  and  required  to  commit  such  person  to  the  house  of 
correction,  or  common  gaol  of  such  city  or  county,  unless  he  shall 
give  security  to  indemnify  such  city  or  town,  or  shall  enter  into  a 
recognisance  with  sufficient  surety,  with  condition  to  appear  at  the 
next  general  sessions  of  the  peace,  to  be  holden  for  such  city  or 
county,  and  to  abide  or  perform  such  order  as  shall  be  made  in 
pursuance  of  this  act."  Sess.  36.  c.  12.  s.  2.  1  R.  L.  306. 

The  warrant  can  only  be  issued  on  application  of  the  overseers   WaiUwonit 
of  the  poor,  or  either  of  them  ;  thu  justice,  in  this  car,c,  acts  minis-    J,,',,^';,1' 
terially,  and  if  he  issue  the  warrant  on  the  suggestion  of  any  other   Joims.  Ufj». 
person,  he  renders  himself  liable  in  an  action  for  false  imprison- 
ment;  notwithstanding  any  subsequent  consent  of  tha  overseers 
that  the  proceedings  against  the  putative  father  should  go  on. 

"If  any  woman  shall  be  delivered  of  a  bastard. child,  whi-  h  hlin',1 


46  BASTARD. 

he  chargeable,  or  likely  to  become  chargeable  to  any  city  or  town, 
or  shall  declare  herself  to  be  with  child,  and  that  such  child  is  like- 
ly to  be  born  a  bastard,  and  to  become  chargeable  to  any  city  or 
town,  and  ihall  upon  examination,  to  be  taken  in  writing  upon  oath, 
before  any  one  justice  of  the  peace,  of  any  city,  or  of  any  county 
wherein  such  town  is,  charge  any  person  with  having  gotten  her 
with  child  in  any  county  or  city  within  this  state,  and  that  such 
person  shall  reside,  or  be  in  any  other  city  or  county,  it  shall  be. 
lawful  for  such  justice,  upon  application  made  to  him  by  the  over- 
'/•crs  of  the  poor  of  such  city  ortowrn,  or  persons  acting  as  such, 
or  by  any  one  of  them,  to  issue  his  warrant  for  the  apprehending 
such  person  so  charged  as  aforesaid,  and  for  bringing  him  before 
such  justice,  or  before  any  other  justice  of  the  peace  of  such  city 
or  county ;  and  it  shall  bo  the  duty  of  the  constable,  or  other  pro- 
per officer  to  whom  such  warrant  shall  be  directed,  to  carry  the 
same  to  some  one  justice;  of  the  peace  of  such  city  or  county 
wherein  such  person  resides,  or  is  said  to  reside,  or  can  be  found  ; 
and  such  justice  is  hereby  required,  upon  proof  being  made  upon 
oath  of  the  hand-writing  of  the  justice  granting  such  w  arrant,  to 
indorse  his  n-ame  on  such  warrant,  which  r-hall  be  a  sufficient  au- 
thority to  the  person  bringing  such  warrant,  and  to  all  other  per- 
sons to  whom  such  warrant  was  originally  directed,  to  execute 
such  warrant  in  such  other  city  or  county  where  such  warrant 
was  indorsed,  and  to  apprehend  and  take  such  person,  so  charged, 
as  aforesaid,  before  the  justice  who  indorsed  such  warrant,  or 
some  other  justice  of  the  peace  of  such  city  or  county  where  such 
warrant  was  indorsed ;  and  in  case  such  person,  so  apprehended  and 
charged  as  aforesaid,  shall  be  willing  and  ready  to  give  security  to 
indemnify  such  city  or  town,  when  such  bastard  child  is  chargea- 
ble, or  likely  to  become  chargeable,  or  enter  into  recognisance  for 
his  appearance  at  the  next  general  sessions  of  the  peace,  to  be 
holden  for  the  city  or  county  wherein  such  town  lies,  such  justice 
of  such  other  county  or  city,  before  whom  such  person  shall  be 
brought,  shall  take  such  security,  or  such  recognisance  as  afore- 
said, in  the  same  manner  as  any  justice  of  the  peace  of  the  pro- 
per city  or  county  might  have  done ;  and  the  justice  so  taking 
such  security  or  recognisance  shall  deliver  the  same,  together 
•with  ail  other  proceedings  had  or  done  by  him  in  the  premises,  to 
the  constable  or  other  person  so  bringing  such  person  before  him, 
who  are  hereby  required  to  receive  the  same,  and  to  deliver  over 
Fuch  recognisance  and  other  proceedings  to  the  justice  or  justices 
who  originally  granted  such  warrant,  or  to  some  other  justice  of 
the  peace  of  such  county  or  city  where  such  warrant  was  granted, 
and  such  justice  or  justices  are  hereby  required  to  proceed  as  if 
the  said  recognisance  and  other  proceedings  were  had  or  taken 
by  themselves;  and  such  recognisance  and  other  proceedings 
shall  be  as  effectual  in  law  as  if  the  same  had  been  entered  into, 
taken,  and  acknowledged  before  a  justice  of  the  peace  for  the 
jjropnr  city  or  county  where  the  said  bastard  child  is  chargeable, 
••'••  '  •  '  come  chargeable,  and  the  same  proceedings  shall 


BASTARD.  47 

be  had  thereon ;  and  in  case  such  constable,  or  other  person  to 
whom  such  recognisance  and  other  proceedings  shall  be  so  deli- 
vered, shall  refuse  or  neglect  to  deliver  over  the  same,  as  herein* 
before  directed,  such  constable  or  other  person  shall  forfeit  the  sum 
of  one  hundred  and  twenty-five  dollars,  to  be  recovered  against 
him  by  action  of  debt,  or  by  information  in  any  court  of  record, 
by  any  person  who  will  sue  for  the  same  ;  and  if  such  person,  so 
apprehended  as  aforesaid,  shall  not  give  such  security,  or  enter 
into  such  recognisance,  to  the  satisfaction  of  the  justices  before 
whom  such  person  shall  be  brought,  in  such  other  county  or  city, 
then  the  constable  or  other  person  shall  take  such  person,  so  ap- 
prehended, before  the  justice  who  issued  such  warrant  originally, 
or  before  one  of  the  justices  of  the  peace  of  the  city  or  county 
where  such  warrant  was  issued.  And  the  said  justice  or  justices 
shall  proceed  against  such  person  so  charged,  and  so  brought: 
before  him  or  them,  as  they  might  or  ought  to  have  done  if  the 
said  person  resided  in  the  county  or  city  where  such  warrant 
was  issued."  s.  4.* 

The  security  required  by  the  statute,}  whether  a  bond  or  other  2  Dong.  422. 
security,  is  merely  to  indemnify  the  town  ;  hence,  in  a  suit  by  the   Collvi5J?w" 
overseers,  they  can  recover  no  more  than  they  have  actually  been   no.  wihie  >  • 
damnified.    So  when  a  promissory  note  was  taken  which  import-  f^fi"^ 
ed  and  was  understood  by  the  parties  to  be  payable  at  all  events,  it 
was  held  that  the  plaintiffs  were  not  entitled  to  recover  beyond  the 
injury  they  had  sustained,  (a  sum  exceeding  which  the  defend- 
ant had  paid  into  court,)  whether  as  considering  the  contract  void 
upon  principles  of  public  policy,  or  considering  it  with  relation  to 
the  individuals  with  whom  it  was  made,  as  a  contract  for  gain  or 
loss  by  persons  clothed  with  a  public  trust  upon  the  subject-mat- 
ter of  their  trust,  and  giving  them  an  interest  in  the  mal-execu- 
tion  of  it;  for  it  would  be  giving  the  overseers  an  interest  in  the 
death  of  a  child  whom  it  was  their  duty  to  preserve. 

The  overseers  cannot  take  a  sum  in  gross  from  the  putative   icampb. 
father,  and  discharge  him  from  all  future  liability,  for  this  too 
would  be  giving  them  an  interest  in  the  death  of  the  child,  and  if 
paid  under  circumstances  of  compulsion,  the  money,  or  the  sur- 
plus remaining  unexpended,  may  be  recovered  back. 

The   defendants  are  liable  no  farther  than  the  penalty  of  the  2B!. use. 
bond,  or  the  sum  specified  in  the  note,  or  other  security  ;  and  in  ciarkjoii.s 
an  action  on  such  a  bond,  the  defendant  has  been   allowed,  on  >f-R-3<): 
payment  of  the  penalty  and  costs,  to  have  satisfaction  entered  on 
the  record. 

Where  the  condition  of  a  bond  was,  that  if  the  above  boundcn  Fali»  and 

Smith  v. 


The  justice  indorsing  the  warrant,  is  not  liable,  cither  civilly  or  cri- 
minally, but  only  the  justice  issuing  it.  1  R.  L.  303. 

t  The  overseers  have  a  right  to  any  security  which  they  may  deuinnil, 
however  large;  for  it  is  at  the  option  oi'  thn  pnrty  either  to  g 
terinto  a  recognisance.     Peakt ,  234. 


Johns.  Hi-p. 
486. 


48  BASTARD. 

T.  B.  and  I.  B.,  or  any  of  them,  their,  or  any  of  their  executor* 
or  administrators,  do,  and  shall  from  time  to  time,  and  at  all  times 
hereafter,  well  and  sufficiently  save,  defend,  keep  harmless,  and 
indemnify  the  above  named,  kc.  overseers  of  the  poor,  &,c.  from 
the  educating  and  instructing,  bringing  up,  and  providing  for  a 
male  bastard  child,  Sec.  the  supreme  court  held,  that  the  child 
having  arrived  to  the  age  of  twenty-one  years,  is  not  a  reason  for 
discharging  the  defendant  from  the  obligation  of  this  bond,  by 
which  he  has  expressly  stipulated  to  indemnify  the  town  at  all 
times  thereafter.  The  expression  bastard-child  was  merely  de- 
scriptive of  the  person,  and  does  not  import  any  limitation  of  the 
time  to  which  the  obligation  was  to  extend. 

*Wd.  It  is  not  necessary  that  there  should  be  any  previous  order  of 

maintenance,  to  enable  the  overseers  to  recover  on  such  bond.  In 
the  case  last  cited,  the  court  said,  that  the  expenditures  and  main- 
tenance of  the  child,  which  they  were  to  presume  were  shown  to  be 
necessary  and  reasonable,  were  as  obligatory  on  the  defendant 
without  as  with  an  order  from  a  justice. 

ibid.  The  section  of  the  act,  which  requires  the  previous  order  of  a 

justice,  applies  to  the  case  only  of  a  voluntary  application  for  re- 
lief, by  the  pauper  himself,  and  not  to  indigent  and  helpless  chil- 
dren, or  other  persons  incapable  of  making  application  to  the  ma- 
gistrate. An  order,  therefore,  was  not  necessary  in  this  case. 

lb;d.  The  defendant  in  the  abovementioned  case  having  entered  into 

a  bond  to  the  overseers  of  one  town,  and  having  done  certain  acts 
in  affirmance  thereof,  was  held  to  be  estopped  from  alleging  that 
the  child's  place  of  settlement  was  in  another  town.  His  obligation 
alone,  it  would  seem,  would  be  sufficient  to  preclude  him  from 
this  defence. 

The  place  of  the  last  legal  settlement  of  the  mother  is  bound 
to  maintain  the  bastard.  Poor,  II. 

"  If  the  woman  so  charging  any  person  shall  die,  or  be  married 
before  she  shall  be  delivered,  or  if  she  shall  miscarry  of  such 
child,  or  shall  appear  not  to  have  been  with  child  at  the  time  of 
her  examination,  then  such  person  shall,  at  the  next  general  ses- 
sions of  the  peace,  to  be  holden  for  such  city  or  county,  be  dis- 
charged from  his  recognisance,  or  immediately  released  out  of 
custody,  by  warrant  under  the  hand  and  seal  of  any  one  justice 
of  the  peace  of  such  city  or  county."  s.  3. 

"  Upon  application  made  by  any  person  who  shall  be  commit- 
ted to  any  house  of  correction  or  gaol,  by  virtue  of  this  act,  or 
by  ary  person  in  his  behalf,  to  any  one  justice  of  such  city  or  of 
such  county,  residing  in  or  near  such  town,  such  justice  is  hereby 
authorized  and  required  to  summon  the  overseers  of  the  poor  of 
such  city  or  town,  to  appear  before  liim,  at  a  time  and  place  to  bt« 
mentioned  in  such  summons,  to  show  cause  why  sufh  person 
should  not  be  discharged ;  and  if  no  order  shall  appear  to  have 
been  made  in  pursuance  of  this  act,  within  eight  weeks  after  suth 
woman  shall  have  been  delivered,  such  justice  shall  discharge  birc 
from  his  imprisonment."  s.  8. 


BASTARD.  49 

•  It  shall  not  be  lawful  for  any  justice  of  the  peace  to  send  for 
any  woman  whatsoever,  in  order  to  her  being  examined  concern- 
ing her  pregnancy,  or  supposed  pregnancy,  until  one  month  after 
she  shall  be  delivered,  or  to  compel  any  woman,  before  she  shall 
be  delivered,  to  answer  to  any  question  relating  to  her  pregnan- 
cy." s.  7. 

To  an  indictment  against  C.  for  secreting  a  woman  who  was  R.  v.  chaun- 
with  child  by  him,  to  prevent  her  giving  evidence  respecting  the  ^ayro!  life's, 
premises,  and  to  elude  the  execution  of  the  law  for  the  crime 
aforesaid ;  the  defendant  demurred,  and  judgment  was  given  for 
him,  for  the  child  cannot  be  illegitimate  before  it  is  born,  there  be- 
ing always  a  possibility  that  it  may  be  born  in  lawful  wedlock  ; 
and  by  this  act  the  woman  is  not  to  be  compelled. 

If  the  recognisance  taken  under  this  act,  to  appear  at  the  ses- 
sions, shall  be  forfeited,  "  such  recognisance  shall  not  be  estreated 
and  sent  into  the  court  of  exchequer,  but  the  court  of  sessions  of 
the  peace  to  which  such  recognisance  may  be  returned,  shall  di- 
rect the  clerk  of  the  city  or  county  to  prosecute  a  suit  upon  the 
said  recognisance,  in  the  court  of  common  pleas  of  the  city  or  coun- 
ty, where  the  person  or  persons  who  entered  into  such  recogni- 
sance can  be  found  ;  and  the  money,  when  recovered,  shall,  after 
deducting  the  charges  of  such  recovery,  be  paid  by  such  clerk  to 
the  overseers  of  the  poor  of  the  city  or  town,  for  the  indemnifi- 
cation whereof  such  recognisance  was  taken,  to  be  applied  to  the 
relief  of  the  poor  thereof.  And  it  shall  be  lawful  for  the  court 
of  sessions,  into  which  such  recognisance  is  or  shall  be  returned, 
at  any  time  after  the  forfeiture  thereof,  to  order  the  clerk  of  the 
city  or  county  to  compound  for  the  penalty  thereof,  in  such  man- 
ner, and  upon  such  terms,  as  the  said  court  shall  judge  proper." 
s.  5. 

III.   Order  of  filiation  and  maintenance  by  the  Justices. 

In  cases  in  which  no  security  has  been  given,  another  course  of 
proceeding  may  be  taken  for  the  relief  of  the  town. 

By  the  first  section  of  the  act,  it  is  provided,  "  That  any  two 
justices  of  the  peace  of  any  city  or  county,  one  whereof  residing 
in  or  near  the  town  within  which  any  bastard,  or  child  begotten 
and  born  out  of  lawful  matrimony,  shall  be  born,, upon  examina- 
tion of  the  matter,  shall,  in  their  discretion,  make  order  for  the 
better  relief  of  every  such  city  or  town,  and  shall  likewise,  by 
like  discretion,  make  order  for  the  keeping  of  any  such  bastard, 
child,  by  charging. such  mother  or  reputed  father  with  the  pay- 
ment of  money  weekly,  or  other  sustentation,  for  the  support  of 
such  child,  as  they  shall  think  meet :  and  if,  after  the  same  order 
by  them  subscribed  under  their  hands,  the  mother  or  reputed  fa- 
ther, upon  notice  thereof,  shall  not,  for  his  or  her  part,  observe 
and  perform  the  said  order,  then  every  such  party,  so  making  de- 
fault, shall  be  committed  to  the  house  cf  correction.  «r  for  wsrnt 

[7  ] 


50  BASTARD. 

tlicreol',  to  the  common  gaol  of  such  city  or  county,  there  to  re- 
main without  bail,  except  he  or  she  shall  put  in  sufficient  surety  to 
perform  the  said  order,  or  personally  to  appear  at  the  next  gene- 
ral sessions  of  the  peace,  to  he  hulden  in  and  for  the  city  or  coun- 
ty vhere  such  order  shall  be  taken  ;  and  also  to  abide  such  order 
as  the  said  justices  of  the  peace,  or  the  major  part  of  them,  in 
their  said  sessions,  shall  make  in  that  behalf,  if  they  then  and 
there  shall  make  any  ;  and  that  if,  at  the  said  sessions,  the  said  jus- 
tices shall  make  no  other  order,  then  to  abide  and  perform  the 
order  before  made." 

cuv  ove?'n"  The  general  sessions  has  no  power  to  make  an  origins!  order  in 
seers  of  cases  of  bastardy,  but  can  only  act  on  an  appeal.  Original  juris- 
.Fo'imi.  Rep.  diction  was  given  to  the  sessions  in  England  by  the  statute  of  3 
-'^  Car.  I.  c.  4.  and  that  statute  has  never  been  re-enacted  with  us. 

It  was  resolved  by  the  king's  bench,  in  Slater's  Case  (CVo.  Car. 
•1-70.)  that  before  this  statute  of  Charles,  the  justices,  at  their  ses- 
sions, had  no  authority  to  meddle  in  the  case  of  bastardy,  until 
two  justices,  according  to  the  statute  of  1 8  Eliz.  c.  3.  had  made  an 
order  therein.  Our  statute  seems  to  be  a  transcript  of  the  Bri- 
tish statute,  except  the  single  section  relating  to  this  subject  in 
the  statute  of  Charles  I. 

oVer'seeMof  Sarah  Waring  was  born  in  the  state  of  Connecticut,  where  she 
New-Tort, 3  had  a  legal  settlement,  and  on  the  1st  of  May,  1801,  came  to  re- 
':".'"*  side  in  the  city  of  New-York,  where  she  continued,  in  the  capa- 

city of  a  servant,  ur.til  the  19th  of  January,  1805,  when  she  was 
delivered  of  a  bastard  child.  She  had  not  been  bound  as  an  ap- 
prentice or  servant  to  any  person  by  indenture  or  contract  in  wri- 
ting, though  there  was  a  verbal  agreement,  that  the  person  with 
whom  she  lived  should  pay  her  wages.  On  the  application  of  the 
overseers  of  the  poor  of  the  city  of  New-York,  an  order  was 
made,  charging  the  appellant,  the  reputed  father  of  the  child,  'with 
its  maintenance,  which  order,  on  an  appeal  to  the  sessions,  was 
aflirmed:  the  cause  was  brought  before  the  supreme  court  on  cer- 
tiorari.  SPENCER,  J.  The  legal  settlement  of  Sarah  Waring  ap- 
pears to  have  been  in  Stamford,  in  the  state  of  Connecticut ;  and 
her  residence  in  New-York  was  not  of  that  kind  as  to  acquire  a 
legal  settlement  there.  This,  however,  does  not  touch  the  ques- 
tion arising  in  the  case,  which  ia,  whether  the  justices  of  New- 
York,  vvhci-e  the  child  was  born,  can  make  an  order  of  filiation, 
when  the  mother  has  no  legal  settlement  there  :  and  it  is  supposed 
that  they  cannot,  because  the  settlement  of  the  bastard  follows  that 
of  the  mother.  The  first  section  of  the  act  for  the  relief  of  cities 
and  towns  from  the  maintenance  of  bastard  children,  expressly 
gives  the  power  to  any  two  justices  of  the  peace  of  any  city  or 
county,  upon  examination  of  the  matter,  to  make  an  order  for  the 
relief  of  the  city  or  county  within  which  any  bastard  shall  be  born. 
The  removal  of  paupers  is  only  an  auxiliary  remedy  ;  and  it  wag 
competent  to  the  overseers  to  apply  for  the  order  of  filiation.  In 
my  opinion,  the  justices  had  the  power  to  make  the  order  they  did, 


BASTARD.  ij\ 

and  it  must  be  affirmed.  VAN  NESS,  J.  and  THOMPSON,  J.  were  of 
the  same  opinion. — KENT,  Ch.  J.  I  also  am  of  opinion  that  the 
order  must  be  affirmed;  but  for  this  reason  principally,  that  as  the 
child  was  born  in  New-York,  and  the  mother  had  no  settlement 
within  the  state,  the  child  must  be  adjudged  to  be  settled 
where  it  was  born.  The  law  declaring  "that  every  bastard  child 
follows  the  settlement  of  the  mother,  applies  only  to  cases  where 
the  mother  has  a  legal  settlement  within  the  state.  If  she  has 
none,  the  child  must  be  chargeable  to  the  town  where  it  was  born, 
and  it  cannot  be  sent  out  of  the  state.  It  becomes  a  native  citizen 
by  birth,  and  is  entitled  to  protection,  as  well  as  b»und  to  allegi- 
ance.— Order  affirmed. 

The  statute  is  not  restrictive  as  to  the  number  of  justices,  for  i  i>ae.  Air. 
more  than  two  may  make  an  order,  but  it  requires  at  least  that  *2I< 
number. 

The  mother  may  be  examined  upon  oath  concerning  the  re-  *  Bac2'  £*£' 
putcd  father,  and  of  the  time,  and  other  circumstances.    But  such  AI&.  2Bific!;! 
examination  must  be  by  both  justices  together,  for  it  is  a  judicial   101" 
act ;  as   where  the  woman  was  examined  severally,  at  separate 
times,  but  in  the  same  day,  and  in  separate  places,  by  two  jus- 
tices, it  was  held  insufficient.     It  is  not  enough   that  one  should 
examine  and  make  report  to  the  other;  but  if  they  are  both  pre- 
sent, and  only  one  examine,  it  is  sufficient,  for  that  is  in  fact  the 
examination  of  both. 

In  this,  as  in  all  other  cases,  the  party  accused  should  have  an   i  Bac.  ALr. 
opportunity  of  being  heard  in  his   defence;  and,   therefore,  not  temp- H. us. 
only  the  mother,  but  likewise  the  putative  father,  should  be  sum-   Cal('-  3C?- 
raoned  to  appear;  but  they  may  be  summoned  by  a  different  jus- 
tice from  those  who  take  the  examination  ;  and  if  the  putative 
father,  being  summoned,  does  not  appear,  the  justices  may  make 
an  order  ;  but  the  order  need  not  state  the  summons. 

An  order  was  quashed  because  it  was  made  on   an   affidavit  c°rab.  103. 
brought  to  the  justices  without  any  examination  of  witnesses. 

No  time  is  limited  for  their  proceeding  in  this  respect,  so  that  i  Rum's  TUSI. 
the  order   may  be  made  as  well  after  as  before  the  birth  of  the  "3"  pi.  j°".' 
child.     Thus  it  was  resolved,  that  if  the  father  run  away  and  re- 
turn, though  fourteen  years  after,  yet  an  order  to  fix  the  child  on 
him  is  good,  for  there  is  no  statute  of  limitation  in  these  cases ; 
and  although  by  section  t>,  the  father  having  been  committed, 
may  be  discharged,  if  no  order  has  been  made  within  eight  weeks 
after  the  woman  shall  have  been  delivered,  yet  an  order  afterwards 
made  will  be  good. 

Whether  the  overseers,  says  Dr.  Burns,  shall  have  the  sole  ap- 
plication of  the  money  ordered  for  the  sustcntation  of  the  child, 
and  ordering  of  such  child,  or  the  reputed  father  may  take  the 
child  from  the  parish  and  provide  for  it  himself,  hath  been  doubt- 
ed, and  scemeth  not  yet  to  have  been  fully  settled  by  the  unani- 
mous resolution  of  the  comt;  but  until  seven  years  of  age  the 
child  shall  stay  with  the  mother  for  nurture. 

Irv -Vc'c/C7irf  and  Ormvn..  the  nue^ion  was,  whether  a  putatire   ?;i.  «"^' 


BASTARD. 


2  Johns.  Rep. 
375. 


1  Bunu'Just. 
255. 


He*  v.  Soper, 
S  T.  H.  27S. 
K'-x  v.  Hip- 
Mi  s.  7  East, 
573. 


1  Burns' Jost. 
262.    263. 
1   Bac.    Abr. 

521.3   .IcaSrS 

there  cited. 


Ibid. 


father  may  take  a  bastard  child  into  his  own  custody  to  maintain 
it,  or  whether  the  parish  shall  have  the  care  of  it:  three  out  of 
four  of  the  judges  were  clear  that  the  father  had  a  right  to  take 
the  child  and  maintain  it  himself. 

In  The  People  v.  Landt,  the  supreme  court  went  still  farther  in 
recognising  the  right  of  the  mother  to  the  custody  of  the  child. 
when  the  question  lies  between  her  and  the  putative  father.  In 
the  case  of  illegitimate  children,  says  the  court,  and  especially 
as  to  females,  the  mother  appears  to  us  to  be  the  hr.-t  entitled  to 
the  custody  of  them  :  but  this  right  is  not  of  such  a  nature  as  to 
prevent  the  court  from  interfering  to  take  the  infant  from  the 
custody  of  its  mother,  under  special  circumstances  of  ill  treat- 
ment. 

The  current  of  authority,  particularly  the  modern  cases,  ap- 
pears to  be  in  favour  of  the  mother's  right  to  the  custody  of  the 
child. 

Where  the  putative  father  obtained  possession  of  the  child  by 
fraud,  the  court  ordered  her  to  be  restored  to  her  mother.  In 
Rex  \.  Jlosely.  Lord  Kenyan  said,  where  the  father  has  the  custo- 
dy of  the  child  fairly,  I  do  not  know  that  this  court  would  take  it 
away  from  him.  •  But  where  he  has  got  possession  of  the  child  by 
force  or  fraud,  we  will  interfere,  to  put  matters  in  the  same  situation 
as  before 

The  order  must  state  the  sex  of  the  child,  and  must  expressly 
set  forth  the  town  in  which  it  is  born,  that  it  may  appear  that  the 
justices  have  jurisdiction,  and  that  the  child  was  born  in  the  town 
which  is  to  be  relieved  :  that  it  was  made  on  the  complaint  of 
that  town,  and  it  should  appear  to  have  been  made  on  personal 
examination  of  witnesses  :  it  must  contain  an  express  adjudica- 
tion.that  the  person  charged  is  the  putative  father  :  to  say  that  it 
appears  to  them,  or  that  they  believe  it  his.  will  be  insufficient. 
For  any  material  defect  of  this  kind  an  order  will  be  quashed. 

The  justices  may  order  a  gross  sura  to  be  paid  for  expenses  al- 
ready incurred  by  the  town  :  but  then  they  must  state  what  the 
expenses  have  been:  and  for  the  future  indemnity  of  the  town, 
they  may  order  a  sum  to  be  paid  weekly  for  and  during  so  long 
time  as  the  child  shall  be  chargeable.  Therefore,  if  it  is  to  pay 
so  much  weekly,  without  any  limitation  of  time,  it  is  bad:  or  if 
the  order  be  to  pay  a  sum  weekl}'  for  the  maintenance  of  the  child 
until  it  arrives  at  such  an  age  that  it  can  no  longer  be  intended  that 
it  will  be  chargeable,  as  at  fourteen.  But  if  it  be  to  pay  so  much 
weekly  until  the  child  is  nine  years  old,  the  order  will  be  good, 
for  it  will  be  intended  that  the  child  would  be  unable  to  provide 
for  itself  sooner.  So  an  order  to  pay  so  much  until  further  order, 
is  bad  ;  or  an  order  that  the  reputed  father  should  give  such  se- 
curity as  the  overseers  should  think  fit,  because,  by  such  an  or- 
der, the  justices  delegate  their  authority  to  others.  The  sum  or- 
dered to  be  paid  must  not  be  excessive,  or  more  than  adequate 
for  the  purpose  for  which  it  is  intended,  nor  must  it  be  so  small 
as  to  be  inadequate  for  that  purpose.  Whether  the  justices  can 


BASTARD.  63 

order  a  sum  to  he  paid  for  binding  out  the  child  apprentice  seems 
tii  in-  doubtful. 

An  action  lies  upon  the  order  against  the  putative  father. 

In  error  on  certiorari  from  a  justice's  court.     Mead  and  Green,  Walhworth 
as  overseers  of  the  poor  of  the   town  of  Norwich,  brought   an  joht^Kev. 
action  of  dobt  against  Wallsworth,  before   the  justice,  to  recover  s<57- 
twenty-five  dollars,  on  an  order  of  bastardy,  made  by  two  justices, 
which  required  Wallsworth  to  pay  the  weekly  sum  of  seventy-five 
cents  to  the  overseers  of  the  poor  for  the  first  year  the  child 
should  be  chargeable  to  the  town,  and  fifty  cents  for  every  week 
thereafter  that  the  child  remained  chargeable.     The  defendant 
objected  that  the  plaintiff's  were  not  entitled  to  recover  without 
showing  that  the  child  had  actually  been  chargeable.     The  justice 
admitted  the  order  as  prima  facie  evidence  of  the  child's  being 
chargeable  ;  but  said  the  defendant  might  show  payment,  or  that 
the  child  had  been  maintained  without  any  expense  to  the  town. 
No  such  evidence  was  given,  and  the  justice  gave  judgment  for 
the  plaintiffs  for  twenty-five  dollars. 

Per  Curium.  The  principal  objection  relied  upon  in  this  case 
is,  that  no  action  will  lie  upon  the  order  in  question.  The  objec- 
tion is  untenable.  That  order  is  an  adjudication  of  a  court  of 
magistrates  of  competent  authority,  and  conclusive  upon  the  de- 
fendant, unless  appealed  from  to  the  general  sessions.  Whether 
such  appeal  has  been  made,  or  can  now  be  made,  were  questions 
not  properly  before  the  court.  It  was  enough  for  the  justice  that 
such  order  was  in  full  force,  and  not  reversed  or  modified  by  the 
sessions.  It  was  equivalent  to  a  judgment,  that  the  defendant 
should  pay  the  weekly  sum  of  seventy-five  cents.  The  order  was 
prime,  facie  evidence  of  the  demand ;  and  it  rested  with  the  de- 
fendant to  show  himself  exonerated  from  the  payment,  in  order 
to  avoid  the  recovery  against  him.  Judgment  affirmed. 

No  order  of  filiation  or  maintenance  can  be  made  unless  the  g"n  ^^ 
child  be  born  alive  ;  so  if  the  mother  be  delivered  of  a  dead  born  East,277.  ' 
child,    the  father  will  not  be   liable  for   the   expenses   of  her 
lying-in. 

IV.  Appeal  against  the  order. 

By  the  first  section  of  the  act,  before  cited,  the  mother  or 
reputed  father  refusing  to  perform  the  order  of  the  two  justices 
shall  be  committed,  except  they  shall  put  in  sufficient  surety  to 
perform  the  said  order,  or  else,  "personally  to  appear  at  the  next 
general  sessions  of  the  peace,  to  be  holden  in  and  for  the  city  or 
county  where  such  order  shall  be  taken  ;  and  also  to  abide  such 
order  as  the  said  justices  of  the  peace,  or  the  major  part  of  them, 
in  their  said  sessions,  shall  make  in  that  behalf,  if  they  then  and 
there  shall  make  any,  and  that  if  at  the  said  sessions  the  said 
justices  shall  make  no  other  order,  then  to  abide  and  perform  the 
order  before  made." 


54  BASTARD. 

3  Ld.  Rsym.  Where  an  order  has  once  been  regularly  discharged  upon  an 
"fiurni'Juit.  aPPea'  on  hearing  the  merits,  the  party  cannot  again  be  drawn  in 
se».  question  for  the  same  fact;  so  that  when  the  sessions  discharged 

the  order  of  two  justices,  and  took  a  recognisance  from  the  party 
to  appear  at  themext  sessions,  and  made  a  second  order,  the  se- 
cond order  being  removed  by  certiorari,  was  quashed.  And  in  a 
word,  the  order  of  the  next  general  sessions,  unless  reversed  by 
a  higher  jurisdiction,  is  final,  and  no  other  sessions  can  either  alter 
or  vacate  it. 

"  Any  person  who  shall  think  himself  aggrieved  by  any  judgment 
or  order  of  any  two  justices  of  the  peace,  made  by  virtue  of  this 
act,  may  appeal  to  the  next  general  sessions  of  the  peace,  to  be 
holden  in  and  for  such  county  where  such  judgment  or  order  shall 
be  made,  who  are  hereby  authorized  and  required  to  hear  and 
determine  such  appeal,  and  to  do  justice  therein  accordipg  to  the 
merits  of  the  respective  cases:  and  no  justice  of  the  peace  in 
any  city  or  town,  who  shall  have  been  present  at,  or  assisted  in 
giving  any  judgment,  or  making  out  any  such  order,  shall  sit  in 
any  court  upon  any  such  appeal  as  aforesaid."  s.P. 

"  No  appeal  from  any  judgment  or  order  whatsoever,  of  any  jus- 
tices of  the  peace,  shall  be  proceeded  upon  in  any  court  of  gene- 
ral sessions  of  the  peace,  unless  reasonable  notice  in  writing  be 
given,  by  the  party  appealing,  to  the  overseers  of  the  poor,  or  one 
of  them,  of  such  city  or  town  as  shall  be  affected  by  such  judg- 
ment or  order,  the  reasonableness  of  which  notice  shall  be  deter- 
mined by  the  justices  of  such  general  sessions  of  the  peace  to 
which  the  appeal  shall  be  made  ;  and  if  to  them  it  shall  appear 
that  reasonable  notice  was  not  given,  then  they  shall  adjourn  the 
same  to  some  future  day  in  the  then  court,  or  to  the  next  general 
sessions  of  the  peace,  and  then  and  there  finally  hear  and  deter- 
mine the  same."  s.  10. 

"  The  said  justices,  at  their  general  sessions  of  the  peace,  to  be 
holden  in  any  city  or  county  within  this  state,  shall  award  to  the 
party  in  whose  favour  any  such  appeal  shall  be  determined,  or  in 
case  notice  of  any  such  appeal  be  given,  and  not  afterwards  pro- 
secuted to  effect,  then  to  the  party  to  whom  the  said  notice  shall 
appear  to  have  been  given,  such  costs  and  charges  as  the  said 
justices  in  their  discretion  shall  deem  reasonable  to  be  paid  by  the 
party  against  whom  such  appeal  shall  be  determined,  or  who  gave 
notice  of  such  appeal  as  aforesaid,  and  did  not  prosecute,  the 
same.  And  further,  if  in  any  of  the  cases  aforesaid,  the  person 
ordered  to  pay  such  costs  and  charges  shall  reside  in  any  city  or 
county  out  of  the  jurisdiction  of  such  court  of  general  sessions  of 
the  peace,  it  shall  be  lawful  for  the  partytto  w-hom  such  costs  and 
charges  were  directed  to  be  paid,  to  sue  for  and  recover  the  same 
of  the  person  against  whom  such  order  was  made,  with  costs  of 
suit,  in  an  action  for  monies  had  and  received  to  the  plaintiff's 
\ise,  in  any  court  in  this  state  having  cognisance  thereof,  in  which 
action  a  true  copy  of  the  order  of  such  court,  containing  the 


BRIBERY.  55 

award  of  such  justices,  in  their  court  of  general  sessions  of  the 
peace,  signed  by  the  clerk,  and  sealed  with  the  seal  of  the  same 
court,  when  produced,  shall  be  sufficient  evidence  for  the  recovery 
of  the  monies  so  awarded."  s.  11. 

"  On  the  hearing  of  appeals  under  this  act,  the  courts  of  general 
sessions  shall  begin  de  novo,  and  shall  require  the  party  in  whose 
favour  the  order  appealed  against  was  made,  to  substantiate  the 
same  by  evidence,  except  in  case  of  the  death  of  the  mother  of 
such  child."  s.  12. 

V.  Mother  or  reputed  father  running  away. 

"  It  shall  be  lawful  for  the  overseers  of  the  poor  of  any  city  or 
town,  where  any  bastard  child  shall  be  born,  to  apply  to  any  two 
justices  of  the  peace  of  the  city  or  county  where  the  estate,  real 
or  personal,  or  any  part  thereof,  of  any  putative  father,  or  lewd 
mother,  of  such  child,  who  shall  have  run  away  out  of  such  city 
or  town,  shall  be,  and  by  warrant  under  the  hands  and  seals  of  the 
said  two  justices,  who  are  hereby  authorized  and  required  to  issue 
the  same,  to  seize  and  take  the  goods  and  chattels,  and  to  let  out 
and  receive  the  annual  rents  and  profits  of  the  lands  and  tene- 
ments of  such  putative  father  or  lewd  mother,  so  absconding  as 
aforesaid,  towards  the  bringing  up  and  providing  for  such  bastard 
child  ;  and  so  soon  as  the  said  seizure  shall  be  allowed  of  and  con- 
firmed by  the  justices  in  their  general  sessions  of  the  peace,  it  shall 
be  lawful  for  the  overseers  of  the  poor  of  such  city  or  town,  or 
any  two  of  them,  from  time  to  time,  and  as  often  as  the  case  may 
require,  to  sell  so  much  of  said  goods  and  chattels,  at  public  ven- 
due,  to  the  highest  bidder,  and  to  receive  the  said  rents  and  pro- 
fits, or  so  much  thereof  as  shall  be  ordered  by  the  said  sessions, 
and  to  apply  the  money  arising  therefrom  towards  the  bringing  up 
and  providing  for  such  bastard  child."  s.  8. 

It  is  further  enacted,  "  That  the  said  overseers  of  the  poor  shall 
be  accountable  to  the  justices  of  the  peace,  in  their  said  general 
sessions,  for  all  such  monies  as  shall  arise  from  every  such  sale, 
or  be  received  by  them  for  the  rents  and  profits  of  such  lands  or 
tenements."  Idem. 


BRIBERY. 

Bribery  is  when  a  judge,  or  other  person  concerned  in  the  ad-  4  Biaek-.te 
ministration  of  justice,  takes  any  undue  reward  to  influence  his  be-   139'  14°* 
haviour  in  his  office.     The  offence  of  taking  bribes  is  punished, 
hi  inferior  officers   with  fine  and  imprisonment,  and  those  who 
offer  a  bribe,  though  not  taken,  in  the  same  manner. 

The  attempt  to  bribe  a  person  in  a  public  trust,  to  procure  an   Rex  v. 

Vaugban, 

Hnr:.  5154 


BURGLARY. 

office  for  the  party  offering  the  bribe,  is  a  misdemeanour  at  com- 
mon law. 

"  If  any  person  shall  promise,  offer,  or  give  to  any  member  of 
the  council  of  revision,  council  of  appointment,  or  any  commis- 
sioner of  the  land  office,  or  member  elect  of  the  senate  or  assem- 
bly of  this  state,  or  any  member  who  hath  been  qualified  and 
taken  his  seat  in  the  said  senate  or  assembly,  any  money,  goods, 
chattels,  chose  in  action,  or  other  property,  with  intent  to  influence 
his  vote  on  any  question  brought,  or  to  be  brought,  before  the  said 
councils,  &c.  such  person  shall  be  deemed  guilty  of  a  high  misde- 
meanour, and  shall,  on  conviction  thereof,  be  lined  in  a  sum  not 
exceeding  five  thousand  dollars,  or  imprisoned  in  the  state  prison, 
at  hard  labour,  for  a  term  not  exceeding  ten  years,  or  both,  in  the 
discretion  of  the  court."  Sess.  36.  c.  5.  s.  1.  2  R.  L.  hH. 

"  If  any  such  member,  &tc.  shall  give  his  vote  on  any  question 
brought  as  aforesaid,  in  consequence  of  such  corrupt  promise  or 
promises,  offer  or  offers,  gift  or  gifts,  such  member  shall  be  deem- 
ed guilty  of  a  high  misdemeanour,  and  shall,  on  conviction  there- 
of, be  fined  and  imprisoned  as  aforesaid,  and  also  be  forever  dis- 
qualified from  holding  a  seat  in  the  legislature,  or  any  office  of 
honour,  profit,  or  trust,  in  this  state."  Ibid. 


BURGLARY. 

2  East,  p.c.        Burglary  is  a  felony  at  common  law,  and  is  defined  to  be,  a 
tfcm.4»?Ck'   Breaking  and  entering  the  mansion  house  of  another,  in  the  night, 
i  Hale,  5*9.     with  intent  to  commit  some  felony  within  the  same,  whether  such 
intent  be  executed  or  not.     By  statute,  (sess.  3(3.  c.  2v.  s.  3.)  per- 
sons committing  this  offence,  and  the  accessories  before  the  fact, 
are  punishable  with  imprisonment  for  life  in  the  state  prison.     I 
shall  collect  the  learning  on  this  subject  under  these  four  heads  : 

I.  As  to  the.  time  of  committing  lurglary. 
II.  As  to  the  place. 

III.  As  to  the  manner. 

IV.  As  to  the  inttnt. 

I.  As  to  the  time  cf  committing  burglary. 

4  BUck.Com.  To  constitute  burglar}-,  it  must  be  by  night,  and  not  by  day  ; 
for  in  the  day  time  there  can  be  no  burglary.  As  to  what  shall  be 
accounted  night,  it  is  agreed,  that  if  either  before  .v.:n  rising  or 
after  sunset,  there  be  daylight  sufficient  to  discern  a  man's  fac;-  by, 
it  is  not  burglary ;  but  this  does  not  extend  to  moonlight,  otherwise 
many  midnight  burglaries  would  go  unpunished  ;  and  the  malig- 
nity of  the  offence  does  notsc;  much  consist  in  its  being  commit- 
ted i:i  the  dark,  as  in  those  hours  when  sleep  has  thrown  men  off 


BURGLARY.  57 

Iheir  guard,  and  rendered  them  incapable  of  providing  against 
and  repelling  an  attempt  on  their  mansions.  It  is  further  neces- 
sary that  the  two  essential  parts  of  the  act,  the  breaking  and 
entry,  should  both  be  committed  at  night;  for  if  the  house  be  1  Hale,  55  j. 
broken  in  the  day,  and  the  entry  made  in  the  night,  or  vice  versa, 
it  will  not  be  burglary. 

II.  As  to  the  place. 

Burglary  must  be  committed  in  a  mansion  or  dwelling  house  ;  4  BI.  Cow. 
not  in  a  building  which  may  occasionally  be  used,  or  which  may 
be  intended  for  habitation,  but  one  which  is  usually  inhabited,  or 
if  abandoned,  yet  only  for  a  short  season,  and  with  an  intention  in 
the  occupant  to  return. 

The  mansion  includes  all  buildings  under  one  common  roof,  *9;p*sf>  p<  c> 
and  in   the  occupation  of  one   person,  as  stores,  barns,   &c.  al-   i  Hale,  553. 
though  there  may  be  no  internal  communication  between  them,  sg"?!* 
and  although  they  may  not  be  surrounded  by  a  common  inclosure. 
And  if  the  barn  or  ware-house  be  parcel  of  the  mansion-house, 
and  within  the  same  common  fence,  though  not  under  the  same 
roof,  or  contiguous,  a  burglary  may  be  committed  therein  ;  for  the 
capital  house  protects  and  privileges  all  its  branches  and  appur- 
tenants, if  within  the  curtilage  or  home-stall ;  and  this  rule  has 
been  held  to  apply,  when  the.  only  connexion  between  the  dwell- 
ing-house and  out-house  was  a  pale  reaching  between  them, 

But  where  a  store  was  broken  open,  at  the  distance  of  twenty  TLe  PcopSe 
feet  from  (he  dwelling-house  of  the  owner,  but  having  no  common  John"  eRep. 
fence  or  yard  inclosing  them,  it  was  held  not  to  be  burglary.  424> 

So  where  a  part  of  a  pile  of  buildings,  all  under  one  roof,  was  ?ex  v-  ES§- 
used  as  a  manufactory  by  one  person,  and  the  wings  were  inhabit-  ITEast'  P.  c. 
«d  by  different  persons,  there  being  no  internal  communication   494' 
between  them  and  the  manufactory,  breaking  into  the  latter  was 
not  considered  as  burglary. 

Burglary  cannot  be  committed  by  breaking  into  any  inclosed  If^l^wk 
ground,  or  into  any  booth  or  tent,  though  the  owner  lodge  therein,  c.  as.  s.  n. 

It  cannot  be  committed  in  a  building  which  may  be  only  occa-  !^la\  «'„£' 
sionally  used  for  habitation  ;  thus  where  a  servant  slept  in  a  barn   ssa. 
to  wratch  against  thieves  for  several  nights  previous,  and  on  the 
night  it  was  broken  open  ;  or  where  a  porter  lay  in  a  warehouse  to 
watch  goods,  the  barn  or  the  warehouse  were  not  considered  as 
being  thereby  entitled  to  the  privileges  of  mansion  houses.     But 
breaking  open  a  shop  in  which  the  shop-keeper,  or  his  servant, 
often  or  usually  lodges,  is  burglary. 

Neither  is  it  sufficient  that  the  building  should  be  intended  for  ***$}t*-  c 
habitation,  but  it  must  actually  be  occupied,  and  such  occupation 
must  not  be  by  third  persons,  and  for  a  particular  occasion,  but 
by  the  owner  or  lessee,  or  by  his  famil}'.  As  where  the  former 
occupier  of  a  house  had  removed,  :md  before  another  moved  into 
it,  it  w^s  broken  open  ;  this  was  determined  not  to  be  burglary. 


oil  BURGLAR1. 

Neither  will  the  tenant's  having  put  his  furniture  in  it  make  any 
difference  ;  or  persons  sleeping  in  the  house  to  protect  it  until  the 
tenant  move  in.     Nothing  short  of  the  actual  residence  of  him 
self,  or  his  family  or  servants,  in  it,  will  suffice. 

2  East,  P.  c.  It  is  necessary  in  framing  indictments  of  burglary,  to  ascertain 
and  state  with  precision  to  whom  the  mansion  belongs.  The  rule 
on  this  subject  is  rather  complex.  If,  says  Mr.  East,  the  rule  by 
which  to  ascertain  this  ownership  may  be  compressed  with  suffi- 
cient discrimination  into  a  small  compass,  I  should  say  generally 
that  where  the  legal  title  to  the  whole  mansion  remains  in  the 
...  same  person,  there  if  he  inhabit  it  either  by  himself,  his  family,  or 
servants,  or  even  by  his  guests,  the  indictment  must  lay  the 
offence  to  be  committed  against  his  mansion.  And  so  it  is  though 
he  let  out  apartments  to  inmates,  who  have  a  separate  interest 
therein,  if  they  have  the  same  outer  door,  or  entrance  into  the 
mansion,  in  common  with  himself.  But  if  distinct  families  be  in 
the  exclusive  occupation  of  the  house,  and  have  their  ordinary 
residence  or  domicile  there,  without  any  interference  on  the  part 
of  the  proper  owner;  or  if  they  be  only  in  possession  of  parts  of 
the  house  as  inmates  to  the  owner,  and  have  a  distinct  and  separate 
entrance  ;  then  the  offence  of  breaking,  fcc.  their  separate  apart- 
ments, must  be  laid  to  be  done  against  the  mansion-house  of  such 
occupiers  respectively. 

4  Bl.  Cora.        A.  room  or  lodging    in  any  private  house  is,  for  the  time  being, 

the  mansion  of  the  lodger,  if  the  owner  do  not  himself  dwell  in 

the   house,  or  if  he  and  the  lodger  enter  by  different  outward 

doors.     But  if  the  owner  himself  lie  in  the  house,  and  have  but 

one  outward  door  at  which  he  and  his  lodgers  enter,  such  lodgers 

seem  only  to  be  inmates,  and  all  their  apartments  to  be  parcel  of 

s^East,  P.  c.   tne  one   dwelling  house  of  the  owner.     Thus,  where  a  house  is 

divided  between  two  persons,  so  that  each  part  is  separate  and 

distinct  from  the  other,  without  any  communication  between  them 

2  East,  P.  c.   except  by  the  street,   each  part  is  a  mansion.     So,  also,  if  the 

owner  retain  and   occupy  some  part  of  the  house,  but  does  not 

inhabit  it,  burglary  may  be  committed  with  respect  to  the  tenants 

2  Kast,  P.  c.   or  inmates  of  other  parts  of  the  house.     But  if  the  chamber  of  a 

502*  guest  at  an  inn  be  broken  open,  it  must  be  laid  to  have  been  done 

in  the  mansion  of  the  inn-keeper. 

2  East,  p.  c.        If  a  man  let  out  part  of  his  house  to  inmates,  and  continue  to 
**"•  inhabit  the  rest  himself;  if  he  break  open  the  apartments  of  such 

inmates  and  steal  their  goods,  it  is  not  burglary,  for  it  cannot  be 
burglary  to  break  open  his  own  house. 

5  East,  r.  c.        If  A.  have  a  shop  which  is  parcel  of  his  house,  the  indictment 
507'  must  be   for  breaking   the   mansion-house  of  A. ;    but  if  it  be 

severed  by  lease,  and  have  no  communication  with  the  dwelling- 
house,  by  having  a  different  entrance  ;  then,  unless  the  lessee  or 
his  servant  sleep  there  usually  or  often,  no  burglary  can  be  com- 
mitted in  it.  For  it  is  not  the  mansion-house  of  A.,  being  severed 
by  the  lease  ;  nor  can  it  be  said  to  be  the  mansion-house  of  the 


BURGLARY.  59 

lessee,  if  neither  he  or  his  family  ever  dwell  there,  or  if  their  sleep- 
ing there  be  only  casual  or  temporary. 

Burglary  in  a  building  belonging  to  a  corporation,  and  inhabited  Fo?te*,3B. 
by  its  officers  or  servants,  must  be  laid  in  the  indictment  to  have  Soi.   ' 
been  done  in  the  mansion  house  of  the  corporation. 

III.  *2s  to  the  manner. 

To  make  a  burglary  complete  there  must  be  both  a  breaking  i  Hale,  P.  c. 
of  the  mansion  and  an  entry  ;  but  it  is  not  necessary  that  both 
should  be  done  the  same  night :  as  if  a  hole  be  broken  into  a  house 
one  night,  and  an  entry  made  through  the  same  hole  the  next 
night,  it  is  burglary. 

Though  every  entry  by  a  trespasser  Is  a  breaking  in  law,  yet  that  2  East,  p.  c. 
is  not  sufficient  in  this  case.     Therefore,  if  a  man  leave  his  doors 
or  windows  open,  and  the  thief  enter  and  take  away  the  goods 
in  the  night,  that  will  not  constitute  a  burglary.  But  it  is  otherwise   i  Hale,  P.  c. 
if  he  enter  by  a  chimney,  because  it  is  as  much  enclosed  as  the   558' 
nature  of  the  thing  will  admit  of.     To  amount  to  a  breaking,  the 
cntran.ce  must  be  obtained  either  by  fraud,  conspiracy,  threat,  or 
force. 

Thus  to  knock  at  a  door,  and  upon  opening  it  to  rush  in  with  a  *  BI.  Cm"- 
felonious  intent,  or  to  gain  admission  under  pretence,  of  business,   c.  38. ».  i. 
or  to  take  lodgings  with  a  felonious  intent,  and  afterwards  rob  the 
landlord,  have  all  been  adjudged  burglary  ;  for,  although  there  was 
no  actual  breaking,  the  entrance  was  gained  by  fraud.     So  where 
thieves   raised  the  hue   and  cry,  and  brought  the  constable,  to 
•whom  the  owner  opened  the  door,  and  when  they  came  in  they 
bound  the  constable  and  robbed  the  owner ;  for  to  make  use  of  l  Hale»  p-  c- 

552 

legal  process  as  a  cloak  for  villany  is  one  of  the  highest  offences 
to  public  justice,  and  therefore  the  whole  act  is  esteemed  tortious 
ao  initio. 

Where  the  servant  of  the  owner  conspires  with  the  thief  to  let 
him  in  to  rob  the  owner,  both  Hale  and  Hawkins  are  of    opinion   i  Hale,  sy. 
that  this  is  burglary  in  both.     For  it  is  clear,  observes  the  latter,   ],  9.dW 
that  if  the  servant  were  out  of  the  house,  the  entry  of  the  other 
would  be  adjudged  to  be  his  also ;  and  what  difference  is  there 
when  he  is  in  the  house?    So,  too,  if  different  persons  come  to    iHawk.  c.3«. 
commit  a  burglary  together,  and  some  stand  to  watch  in  adjacent  s>  8> 
places,   and    the  others  enter  and  rob  the  house,  they  are  all 
burglars,  for  the  act  of  one  is,  in  judgment  of  Jaw,  the  act  of  all. 

There  may  also  be  a  breaking  in  law,  where,  in  consequence  of  2  Eait,  r.  c. 
violence   commenced  or  threatened,  in  order  to  obtain  entrance,   <M" 
the  owner,  either  from  apprehension  of  the  force,  or  w:ith  a  view 
more  effectually  to    repel  it,  opens  the  door,  through  which  the 
robber  enters.     But  if  the  owner  only  threw  his  money  out  of  the 
house  to  the  thieves  who  assaulted  it,  this  would  not  be  burglar y : 
though   if  the   money  were  taken  up  in  the  owners  presence,  it 
would  be  robbery.     In  all  other  cases,  where  no  fraud  or  conspi- 


UO  BLRGLAHi . 

racy  is  made  use  of,  or  violence  commenced  or  threalo, 
order  to   obtain  an  entrance,  there  must  be  an  actual  breach  of 
some  part  or  other  of  the  house ;  though  it  need  not  be  accom- 
panied with  any  violence  as  to  the  manner  of  executing  it. 
2  East,  p.  c.       The  breaking  of  a  window,  taking  a  pane  of  glass  out  by  draw- 
Co7m.42i5^cki  'inS  or  bending  the  nails,  or  other  fastening,  the  drawing  a  latch 
Hale,  v.  c.  where  the  door  is  not  otherwise  fastened,  picking  open  a  lock  with 
a  false  key,  putting  back  the  lock  ef  a  door,  or  fastening  of  a  win- 
dow, with  an  instrument  turning  the  key  where  the  door  is  locked 
on  the  inside,  or  unloosing  any  other  fastening  which  the  owner 
has  provided,  are  all  instances  of  a  breaking. 

4S*jast'  PJ  £•  But  though  a  thief  enter  a  dwelling-house  in  the  night  time 
p.  c.  554.  i  through  the  outer  door  being  left  open,  or  by  an  open  window, 
iiawk.  c.  as.  or  wjjere  a  person  is  admitted  into  the  house  by  the  owner's 
consent ;  yet  if,  when  within  the  house,  he  turn  the  key  of,  or 
unlatch  a  chamber  door,  with  intent  to  commit  felony,  this  is 
burglary.  So,  also,  where  a  servant  in  the  night  drew  the  latch 
of  a  door  between  the  two  parts  of  the  house  in  which  he  and 
his  master  lay,  and  entered  his  master's  chamber  in  order  to  mur- 
der him,  it  was  held  burglary.  So  where  a  servant  opened  his 
lady's  chamber  door,  which  was  shut  with  a  spring  lock,  with 
design  to  commit  a  rape.  But  where  the  thief  enters  by  an 
open  door,  and,  while  in  the  house,  breaks  a  trunk  or  box  which 
was  locked,  this  is  no  breaking  to  constitute  burglary ;  because 
such  things  are  no  part  of  the  house. 

With  regard  to  cupboards,  presses,  lockers,  and  other  fixtures 
•p.  103.  of  the  like  kind,  says  Mr.  J.  Foster,  I  think  we  must,  in  favour  of 

life,  distinguish  between  cases  relative  to  mere  property,  and  such 
wherein  life  is  concerned.  In  questions  between  the  heir  or 
devisee  and  the  executor,  those  fixtures  may,  with  propriety 
enough,  be  considered  as  annexed  to,  and  parts  of  the  freehold. 
But  in  capital  cases,*  I  am  of  opinion,  that  such  fixtures,  which 
merely  supply  the  place  of  chests  and  other  ordinary  utensils  of 
household,  should  be  considered  in  no  other  light  than  as  mere 
moveables,  partaking  of  the  nature  of  those  utensils,  and  adapted 
to  the  same  use.  Hence  breaking  them  open  would  not  be 
burglary. 

4  BI.  Com.       As  for  the  entry,  any  the  least  degree  of  it,  with  any  part  of 

pfc.sls^16'  the  body,  or  with  an  instrument  held  in  the  hand,  is  sufficient ;  as 

to  step  over  the  threshold,  to  put  a  hand  or  a  hook  in  at  a  window 

to  draw  out  jgoods,  or  a  pistol  to  demand  one's  money,  arc  all  of 

them  burglarious  entries.    Yet  the  entry  must  be  for  the  purpose 

2  East,  P.  c.   of  committing  a  felony:    as  where  thieves  had    bored  a  hole 

through  the  door  with  a  centre  bit,  and  part  of  the  chips  were 

found  in  the  inside  of  the  house,  by  which  it  was  apparent  that  the 

end  of  the  centre  bit  had  penetrated  into  the  house ;  yet  as  the 


*  Burglary  is  a  capital  offence  by  the  English  law. 


CERTIORARI.  61 

instrument  had  not  been  introduced  for  the  purpose  of  taking  the 
property,  or  committing  any  other  felony,  the  entry  was  ruled 
incomplete. 

IV.  As  to  the  intent. 

It  is  clear,  that  such  breaking  and  entry  must  be  with  a  feloni-  4Biack.Com. 
eus  injtent,  otherwise  it  is  only  a  trespass.  And  it  is  the  same,  227- 
whether  such  intention  be  actually  carried  into  execution,  or  only 
demonstrated  by  some  attempt  or  overt  act,  of  which  the  jury  is 
to  judge.  And,  therefore,  such  a  breach  and  entry  of  a  house,  as 
has  been  before  described,  by  night,  with  intent  to  commit  a  rob- 
bery, a  murder,  a  rape,  or  any  other  felony,  is  burglary  ;  whether 
the  thing  be  actually  perpetrated  or  not.  Nor  docs  it  make  any 
difference,  whether  the  offence  were  felony  at  common  law,  or 
only  created  so  by  statute  ;  since  that  statute  which  makes  an 
offence  felony,  gives  it  incidentally  all  the  properties  of  felony 
at  common  law. 


CERTIORARI* 

A  certiorari  is  an  original  writ  issuing  out  of  chancery  or  the  i  Bac.  Afcr. 
supreme  court,  directed  to  the  judges  or  officers  of  inferior  courts,  5- 
commanding  them  to  return  the  records  of  a  cause  depending 
before  them,  to  the  end  that  the  party  may  have  the  more  sure 
and  speedy  justice.f 

I.  In  what  cases  it  is  grantable. 

II.  How  to  be  granted  and  allowed. 

III.  The  effect  of  it. 

IV.  The.  return  of  it. 
V.  Costs. 

I.  In  what  cases  it  is  grantable. 
A  certiorari  is  crantable  in  all  cases  to  remove  an  indictment  l  Bac-  £' r- 

,.  .     -     .        .      .    ,. .    .        .    ,  ...  5!><}.2Hawk. 

irom  an  inferior  jurisdiction  into  the  supreme  court:  it  is  a  mat-  c.  37.  i.  27. 
ter  of  right  in  cases  in  which  the   people  are  plaintiff;  but  the 


*  As  to  a  certiorari  to  remove  the  proceedings  of  a  justice's  court 
under  the  twenty-five  dollar  act,  see  APPENDIX. 

t  Wherever  a  new  jurisdiction  is  created,  and  the  court  or  judge  that 
exercises  this  jurisdiction  acts  as  a  court,  or  judge  ef  record,  according 
to  the  course  of  the  common  law,  a  writ  of  error  lies  on  their  judgments  ; 
but  where  they  art  in  a  summary  method,  or  in  a  new  course  different 
from  the  coramon  law,  a  writ  of  error  does-  not  lit*,  but  a  ccvtiorari. 


GERTIORARI. 


7  Term  Rep. 
3J3.  tHawk. 
c.  27.  s.  31. 


2  Hawk.  c.27. 
s.30. 


1  Burn'sJust 


I  Hawk.c.27. 
'*,33. 


2  Kale,  210, 


1  .aw  tun  T. 
i.'om.  of  high- 
ways of  Cam- 
triilgr, 

2  Cainei,  179. 


i  Saik.  146, 
ami  1    L<l. 
Rayra.  580. 


court  has  a  discretionary  power  in  granting  or  refusing  it  at  the 
suit  of  the  defendant. 

Where  judgment  has  been  given  on  an  indictment,  the  record 
must  be  removed  by  writ  of  error.  So,  it  seems  agreed,  that  a 
certiorari  shall  never  be  granted  to  remove  an  indictment  after  a 
conviction,  unless  for  some  special  cause  ;  as  where  the  judge  be- 
low is  doubtful  what  judgment  to  give. 

Also,  it  is  said  to  be  a  good  objection  against  granting  a  certio- 
rari, that  issue  is  joined  and  a  venire  awarded  for  the  trial  in  the 
court  below. 

A  mere  informality  in  the  manner  of  drawing  up  a  conviction 
ought  not  to  be  the  inducement  for  removing  it,  but  some  sub- 
stantial defect  in  the  justice  and  legality  of  the  proceeding  itself 
before  the  magistrate. 

The  king's  bench  has  refused  to  grant  a  certiorari  to  remove  a 
recognisance  of  appearance  before  justices  of  oyer  and  ttrmi- 
rer,  See.  because  the  court  below  is  most  proper  to  judge  upon 
the  whole  circumstances  of  the  case,  which  are  equitably  to  be 
considered,  whether  it  ought  to  be  estreated  or  not. 

The  objects  for  which  certioraris  are  granted,  are,  sometimes, 
to  consider  and  determine  the  validity  of  the  indictment,  and 
to  quash  or  affirm  them  as  there  is  cause.  Sometimes  to  have 
the  prisoner  or  offender  tried  either  at  bar  or  at  nisi  prius. 
Sometimes  to  examine  and  affirm  or  reverse  proceedings  and 
judgments  given  by  inferior  judges.  Sometimes  to  issue  process 
of  outlawry  against  the  offender,  in  those  counties  where  the  pro- 
cess of  inferior  justices  cannot  reach  him. 

The  following  case  will  more  fully  illustrate  the  jurisdiction  of 
the  supreme  court  in  granting  certioraris. 

On  certiorari  to  three  of  the  judges  of  the  common  pleas  of 
Washington  to  return  an  appeal  to  them,  from  the  determination 
of  the  commissioners  of  highways  for  the  town  of  Cambridge  ; 
"  and  also  the  decision,  judgment,  process,  and  proceedings  of  the 
same,  with  all  things  touching  the  same."  It  will  be  sufficient, 
without  stating  the  return  and  the  points  arising  upon  it,  to  give 
merely  the  decision  of  the  court  as  to  the  question  of  jurisdiction. 

Per  curiam,  delivered  by  SPEJTCF.R,  J.  It  is  made  a  ques- 
tion, whether  a  certiorari  is  grantable  to  remove  into  thfs  court 
these  proceedings,  the  statute  having  declared  the  decision  of  the 
judges  of  the  common  pleas,  on  an  appeal  made  to  them,  to  be 
conclusive.  It  is  a  position  beyond  contradiction,  that  the 
king's  bench  in  England  (and  this  court  is  clothed  with  the  same 
common  law  authority)  has  jurisdiction,  and  may  award  a  certio- 
rari,  not  only  to  inferior  courts,  but  to  persons  invested  by  the 
legislature  with  power  to  decide  on  the  property  or  rights  of  the 
citizen,  even  in  cases  where  they  are  authorized  by  statute,  fnal- 
i-j,  to  hear  and  determine.  A  certiorari  has  been  held  to  lie  to 
commissioners  of  sewers.  In  the  case  of  CardiflTe  bridge,  a  cer- 
tiorari  was  granted  to  remove  certain  orders  of  justices  of  the 


CERTIORARI.  63 

peace,  made  pursuant  to  a  private  act  of  the  parliament,  for  re- 
pairing the  bridge  ;  and  it  was  then  decided,  that  wherever  new 
jurisdictions  are  erected,  be  it  by  private  or  public  act,  they  ar« 
subject  to  the  inspection  of  the  king's  bench,  by  writ  of  error, 
eertiorari,  and  mandamus.  The  authorities  to  this  point  are  so 
numerous  and  uniform,  that  it  cannot  be  necessary  to  enlarge. 
The  necessity  of  a  superintending  power  to  restrain  and  correct 
partialities  and  irregularities  which  may  be  committed  by  inferior 
officers,  is  so  obvious  and  indispensable,  that  the  court  ought  by 
no  means  to  deny  themselves  a  jurisdiction  of  such  salutary  influ- 
ence. Though  the  general  power  of  the  court  is  indisputable, 
there  are  cases  where  they  will  not  interfere.  In  tlie  case  of  a 
poor  rate,  they  will  refuse  the  writ;  as  also  in  the  assessment  of 
the  land  tax,  from  a  regard  to  the  public  inconvenience.  In  cases 
too,  depending  wholly  on  the  discretion  of  persons  authorized  to 
do  an  act,  this  court  hath  refused  to  interfere  ;  I  allude  to  the  ap- 
plication made  for  a  mandamus  to  the  commissioners  of  high- 
ways of  Rhynebeck.  There  the  court  perceived  that  its  inter- 
ference wcvuld  be  nugatory,  because  the  commissioners  had  a  dis- 
cretion to  lay  out  or  refuse  to  lay  out  the  road  applied  for.  The 
present  is  a  different  case  ;  the  regularity  of  the  proceedings  is 
questioned,  and  most  certainly  the  court  cannot  want  jurisdiction 
to  inquire  into  it,  when  a  freeholder  shall  apply  to  them  not  to  be 
disturbed  in  his  freehold,  but  by  proceedings  conformable  to  law. 

In  the  crae  of  summary  proceedings,  orders  and  convictions  i  nac.  Akr. 
before  magistrates,  the  proceedings  may  be  removed  by  certio-  5T3> 
rari  after  judgment,  because  such  proceedings  can  be  removed 
only  by  eertiorari :  but  where  a  judgment  has  been  given  on  an 
indictment,  the  record  must  be  removed  by  writ  of  error.     And 
though  the  eertiorari  be  issued  before  judgment,  if  it  is  not  ser- 
ved till  after,  it  will  be  quashed. 

A  eertiorari  will  not  be  granted  to  remove  a  conviction  before    R.V. Ba^, 
justices  of  the  peace,  where  they  see  that  the  justices  have  drawn  |5yermReP- 
the  proper  conclusion  from  presumptive  evidence. 

It  will  not  be  granted  where  an  appeal  is  given,  if  the  objection  »oug.  549. 
be  not  to  the  want  of  jurisdiction,  but  to  the  merits,  for  that  is  55J' 
more  properly  the  subject  of  appeal ;  a  fortiori,  they  will  not  grant 
it  pending  an  appeal. 

With  respect  to  appeals,  there  is  this  distinction;  if  one  party  2  Term  Rep. 
only  has  a  right  of  appeal,  or  no  time  is.  limited  for  bringing  the   }6Bac.  "Abr. 
appeal,  the  certiorari  shall   be  immediately  granted ;  for,  in  the  5^''.*"flc^'es 
one  case,  the  party  having  the  right  may  waive   it;  and  in   the 
other,   if  the  objection  were  to  be  allowed,  the  certiorari  might 
never  issue  ;  but  if  both  parties  have  a  right  to  appeal,   and  the 
time  is  fixed,  in  that  case  ijt  shall  not  be  granted  until  after  the  ap- 
peal hath  been  made,  or  the  time  for  making   it  hath   elapsed. 
But  notwithstanding  an  appeal  depending,  if  the  order  must  be 
obeyed  before  th.?  validity  of  it  can  be  determiner!,  a  certiorari 


CERTIORAIU 

will  lie.     Advantage  must  be  taken  of  this  rule,  in  tuo  case  of  an 
order,  before  the  order  is  filed. 

II.  How  to  be  granted  and  allowed. 

No  certiorari  shall  issue  out  of  any  Court  to  remove  "  any  in- 
dictment, presentment,  inquisition,  judgment,  order,  record,  recog- 
nisance, or  other  proceeding,  out  of  any  other  court,  or  from 
before  any  justice  or  justices  of  the  peace,  unless  the  same  be 
allowed  and  signed  by  one  of  the  justices  of  the  court  out  of 
which  the  same  shall  issue."  Sess.  24.  c.  13.  s.  1.  ]  R.  L.  140. 

"No  certiorari,  at  the  instance  of  any  party  indicted  for  any 
misdemeanour,  in  any  court  of  general  sessions  of  the  peace, 
shall  issue  during  any  term  of  the  supreme  court  to  remove  such 
indictment  before  the  trial  thereof,  unless  the  same  be  granted  on 
motion  made  in  open  court,  and  by  a  rule  of  the  said  supreme 
court;  and  every  certiorari,  directed  to  any  court  of  general  ses- 
sions of  the  peace,  shall  be  delivered  in  open  court."  Ibid. 

"Every  person  indicted  for  any  misdemeanour  in  any  court  of 
general  sessions  of  the  peace,  or  against  whom  any  judgment  OF 
order  of  such  court,  or  of  any  justice  or  justices  of  the  peace, 
other  than  judgments  in  actions  for  debts  or  demands  between 
party  and  party,  shall  have  been  given  or  made  by  \irtue  of  any 
law  of  this  state,  for  the  benefit  of  any  other  person,  shall,  on 
prosecuting  such  certiorari,  and  before  the  allowance  thereof, 
enter  into  recognisance  with  two  sufficient  sureties  to  the  people 
of  this  state,  before  one  of  the  justices  of  the  supreme  court,  or 
before  such  court  of  general  sessions  of  the  peace,  or  any  one 
of  the  justices  thereof,  in  the  sum  of  one  hundred  and  twenty- 
five  dollars  ;  conditioned  in  the  case  of  such  indictment,  that  the 
person  indicted  and  prosecuting  such  certiorari  shall,  at  the  re- 
turn thereof,  appear  and  plead  to  the  same  indictment  in  the  su- 
preme court,  and  at  his  or  her  proper  costs  and  charges,  cause  the 
issue,  which  shall  be  joined  thereon,  or  on  any  plea  relating  there 
to,  to  be  tried  at  the  circuit  court  to  be  held  in  such  county,  next 
after  such  certiorari  shall  be  returnable  ;  if  it  be  not  in  the  coun- 
ty where  the  supreme  court  shall  sit,  and  if  in  such  county,  then 
at  the  next  term  of  the  said  court,  or  at  such  other  time  as  the 
said  supreme  court  shall  appoint,  and  shall  give  due  notice  of  such 
trial  to  the  prosecutor  or  his  attorney,  and  to  the  attorney  gene- 
ral or  district  attorney,  as  the  case  may  require,  and  shall  appear 
from  day  to  day  in  the  said  supreme  couit,  and  not  depart  from 
the  same  without  being  discharged  by  the  said  court,  and  shall 
pay  to  the  prosecutor  the  costs,  if  any,  which  shall  be  ordered  by 
the  supreme  court  in  pursuance  of  this  act;  and  conditioned,  in 
the  case  of  any  such  judgment  or  order,  that  such  person  shall, 
at  his  or  her  proper  costs  and  charge?,  prosecute  such  certiorari 
to  effect,  without  any  wilful  delay,  and  perform  such  judgment  or 
r  :>-  the.  a  ic  court  shall  '  .-.-rsise*,  and 


CERTIORARI.  G5 

p;iy  the  party  for  whose  benefit  the  judgment  or  order  ?o  removed 
uas  made,  such  costs  and  charges  as  shall  be  directed  by  the  said 
court."  s.  t-. 

•'•  Kvery  'such  recognisance  shall  be  delivered,  together  with 
the  writ  of  ccrtiorari,  to  the  justice,  justices,  or  court  to  whom 
the  said  writ  shall  be  directed,  and  he  certified,  together  with  such 
writ,  into  the  supreme  court,  and  there  filed  ;  and  in  case  of  such 
indictment,  the  name  of  the  prosecutor,  if  a  civil  officer,  or  the 
party  grieved,  shall  be  endorsed  thereon  ;  and  if  the  person  in- 
dicted shall  be  convicted  of  the  offence  charged  in  such  indict- 
ment, and  the  prosecutor  be  a  civil  olficer,  prosecuting  on  account 
of  any  matter  relating  to  his  office,  or  the  party  grieved,  the  su- 
preme court  shall  give  to  such  prosecutor,  and  also  to  any  party 
in  whose  favour  or  for  whose  benefit  any  such  judgment  or 
order  shall  be  confirmed,  reasonable  costs,  to  he  taxed  according 
to  the  course  of  the  said  court,  and  to  be  recovered  by  attach  - 
ment  against  the  person  so  convicted,  or  against  whom  such  judg- 
ment or  order  shall  be  made,  at  any  time  after  the  expiration  of 
ten  days  after  demand,  and  refusal  to  pay  the  same,  proof  of  such 
refusal  being  first  made  ;  and  no  such  recognisance  shall  be  dis- 
charged until  such  costs  be  paid,  nor  in  case  of  such  judgment, 
until  the  same  be  performed."  Ibid. 

"  No  writ  of  certiorari,  or  other  process,  shall  issue,  to  remove 
into  the  supreme  court  any  proceedings  had  before  any  justice 
or  justices  of  the  peace,  mayor,  recorder,  or  alderman,  or  any  of 
them,  or  before  any  court  of  general  sessions  of  the  peace,  in  pur- 
suance of  the  act,  entitled,  Jin  act  concerning  apprentices  and 
servants,  until  after  a  final  determination  and  judgment  thereon 
by  such  court  of  general  sessions  of  the  peace."  s.  5. 

If  any  certiorari  "shall  issue  in  any  of  the  cases  above  men- 
tioned, contrary  to,  or  without  the  party  prosecuting  such  writ 
complying  with  the  provisions  contained  io  this  act,  the  justice, 
justices,  or  courts,  to  whom  the  same  be  directed,  shall  and  may 
proceed  as  if  the  same  had  not  been  issued."  s.  6. 

*    The  proceedings  under  the  4-th  section  of  this  act,  to  remove  an   *  Hawk.  c. 
indictment,  extends  only  to  cerlioraris  procured  by  persons  in- 
dicted ;    from  whence  it  follows,  that  those  which  are  procured 
by  the  prosecutor  of  an  indictment,  remain  as  they  were  at  com- 
mon law. 

Notwithstanding,  by  the  express  words,  the  justices  may  pro-  Mf»«»-  *'• 
ceed  notwithstanding  the  certiorari,  if  a  proper  recognisance  be 
not  given  :  yet  they  will  be  in  contempt  to  the  court  that  awarded 
the  certiorari,  if  they  make  no  return  to  it ;  for  all  writs  must 
be  obeyed  unless  good  cause  be  shown  to  the  contrary  ;  and  the 
proper  way  of  showing  it,  is  to  return  it. 

If  the  persons  offering  to  be   sureties  appear  to  be  worth  the   Uem.t.st. 
sum  required,  the  justice  cannot  refuse  them. 

If  there  be  several  defendants,  and   some  find    sureties,  and    idrm.i.  5?, 
others  not.  the  indictment  shall  be  removed  a's  to  those  at  lea--* 

r   o   i 


Cti 


(k.C.27. 


1  Str.  470. 


4  Term  Rep. 

493. 


DraUe  v. 

Drake. 

lUulius.Hcp. 


CERTIOKAKf. 

who  fmd  sureties,  because  they  shall  not  be  prejudiced  by  the 
fault  of  others  ;  and,  as  some  say,  it  shall  be  removed  as  to  all. 

Regularly  it  ought  to  be  directed  to  the  judge  of  the  inferior 
court ;  yet,  in  some  cases,  it  may  be  directed  to  the  proper  officer 
known  to  have  the  custody  of  the  record  to  be  removed,  and  in 
some  other  cases  to  others,  as  shall  be  most  agreeable  to  the 
usual  course  of  approved  precedents,  which  seems  to  be  the  best 
guide  whereby  to  judge  of  this  matter. 

If  the  person  who  ought  to  certify  a  record,  as  a  justice  of 
peace,  &c.  who  hath  taken  a  recognisance,  &c.  or  a  judge  of  nisi 
]M-ius  who  hath  taken  a  verdict,  or  a  coroner  who  hath  taken  an 
inquest,  fee.  happen  to  die,  having  such  a  record  in  his  custody,  it 
seems,  that  a  certiorari  may  be  directed  to  his  executor  or  admin- 
istrator to  certify  it. 

A  certiorari  to  remove  an  order  of  two  justices  may  be  directed 
to*  the  sessions,  and  returned  by  them. 

If  a  certiorari  be  misdirected,  no  third  person  can  object  to  it, 
if  the  proper  officer,  in  whose  keeping  the  record  was,  waives 
the  objection,  and  returns  the  record  upon  the  writ. 

So  where  a  cerliorari  is  entitled  wrong,  and  the  justice  returns 
a  cause,  which  was  in  fact  tried  before  him  according  to  its  true 
title,  after  joinder  in  error,  it  will  be  too  late  to  object  that  the 
cause  was  wrong  entitled  in  the  writ. 


2  Ld.   Kiiyin. 
836.  1305. 
2     Ha«k.    c. 
1!7.  s.  f,2. 


2  T.d.  Rayrn. 


)  Ric.  Abr. 
AT  I.  2  Hwv.-k 
c.  17.  S.  64. 


fi  Term  Rep. 

;..<5.  8  Term 
Utp.  5-S2. 


III.  The  effect  of  it. 

The  effect  of  the  writ  is  to  remove  all  proceedings  of  the  na- 
ture described  therein,  which  have  taken  place  between  the  test? 
and  return,  although  the  proceedings  originated  after  the  teste. 
The  magistrates  below  are  bound  to  obey  the  writ  after  pro- 
duction of  it,  and  notice  to  them  in  fact  of  such  production  when 
pitting  in  their  judicial  capacity  ;  and  after  that,  all  further  pro- 
ceedings before  them  on  the  matter  are  erroneous. 

It  hath  been  adjudged,  that  if  a  certiorari  for  the  removal  of 
an  indictment  before  justices  of  the  peace  be  notdelivered  before 
the  jury  be  sworn  for  the  trial  of  it,  the  justices  may  proceed. 
Also  it  hath  been  holden,  that  a  certiorari  is  of  no  effect,  unless  it 
be  delivered  before  its  return  is  expired. 

And  the  justices  may  set  a  fine  to  complete  their  judgment, 
after  a  certiorari  delivered. 

A  certiorari  for  the  removal  of  a  recognisance  for  the  good  be- 
haviour, or  for  an  appearance  at  the  sessions,  will  not  supersede  its 
obligation  ;  because  it  would  be  highly  inconvenient  that  the  par- 
ty, against  whom  there  may  be  very  just  matter  of  complaint, 
should  be  let  loose  upon  the  bare  bringing  of  a  writ. 

When  a  conviction  is  removed  by  certiorari,  the  facts  canr:ot 
be  made  the  subject  of  inquiry,  although  the  justices  state  evi- 
dence which  prima  facie  would  have  been  sufficient  for  them  to 
have  given  a  different  judgment,  and  no  contradictory  or  explana- 
tory evidence  :  for  the  evidence  is  entirely  and  exclusively  for  the 


CERTIORARI.  tjj 

nsideration  of  the  justices,  who  are  placed  in  the  situation  of  a 
••I-.  The  court  can  only  look  to  the  form  of  the  conviction,  and 
that  the   party,  if  convicted,  had   been  convicted  by   legal 

IV.  The  return  of  it. 

The  return  ought  to  be  under  the  seal  of  the  inferior  court,  or  *  Hawk.  <•. 
of  the  justice   or  justices  to  whom  it  is  directed  ;  and  if  such 
court  have  no  proper  seal,  it  seems  that  the  return  may  bo  well 
made  under  any  other. 

It  must   be  made  by  the  very  same  person  to  whom  the  cer-  idem.s.  ri. 
tinrtiri  is  directed. 

The  person  to  whom  a  certiorari  is  directed  may  make  what  Wem.  s.  74. 
roturn  to  it  he  pleases ;  and  the  court  will  not  stop  the  filing  of  it 
on  affidavits  of  its  falsity,  except  only  where  the  public  good  re- 
quires it,  or  for  some  other  special  reason  ;  but,  regularly,  the  only 
remedy  against  such  a  false  return,  is  an  action  on  the  case  at  the 
suit  of  the  party  injured  by  it,  or  an  information. 

Whatsoever  matters  are  put  into  the  return  of  a  certiorari,  by  2  Hawk.  <•• 
way  of  explanation  or  otherwise,  besides   those  which  are  ex-  ca'iut.Mu^ 
]>ressly  ordered  to  be  certified,  are   put  in  without  any  warrant  i<y. 
or  authority,  and  consequently  shall  be  no  more  regarded,  by  the 
court  above,  than  if  thejr  had  been  wholly  omitted. 

The  certiorari  may  be   sometimes  to  remove  and  send  up  the  Wera.  s.  ?s. 
record  itself,  and  sometimes  but  only  the  tenor  of  the  record, 
as  the  words  therein  be,  and  it  must  be  obeyed  accordingly. 

If  the  sessions  do  not  return  all  the   facts  which  were  before  3  Johns.Rep. 
them,  and  which  are  necessary  to  appear,  in   order  to  judge  of 
the  law  applicable  to  the  same,  the  practice  is  to  order  the  ses- 
sions to  return  such  facts. 

If  the  person  to  whom  a  certiorari  is  directed  do  not  make  a  i  Bums' Just, 
return,  then  an  alias,  that  is,  a  second  writ ;  then  a  pluries,  that  is, 
a  third  writ,  or  caiisam  nolis  significes,  shall  be  awarded,  and  then, 
an  attachment. 

V.  Costs. 

In  what  cases  costs  are  given  by  the  statute,  vide  supra,  II. 

An  inquisition  had  been  found  before  a  justice  of  the  peace  for  Low  r-  Ro- 
an  encroachment  on  the  highway,  by  Low,  the  appellant,  and  others,8" 
which  was  removed  to  this  court  by  certiorari,  and  quashed.  And  ^T°h«is.  R^. 
the  question  now  raised  for  the  consideration  of  the  court  was, 
whether  the  party  was  entitled  to  costs. 

Ptr  curium.      The  inquisition  below  was  not  a  judgment  or 
order,  made  for  the  benefit  of  another  person,  within  the  act  re- 
;  itive  to  suing  out  writs  of  certiorari.     It  seems  to  be  a  casus  s°P''a- 
nmissus  in  our  statute  book  as,  to  costs.     There  is  no  provision 

*  It  is  otherwise  in  the  case  of  a  certiorari  brought  to  remove  proceed- 
ings under  the  twenty-five  d-jllar  act-     2  Johns.  iCep.  19^.  3  Johns.  Re*. 
,  G:;V/'  AVu.187. 


03  CHEATS: 

giving  costs  or  damages,  cither  one  way  or  the  ol her,  v.  hen  such 
a  proceeding  as  that  below  is  removed  into  this  court  by  certiurarl. 
The  act  regulating  the  suing  out  writs  of  certiorari  is  the  only  one 
making  provision  for  costs  in  cases  analogous  to  this,  and  that  is 
clone  by  requiring  the  party  suing  out  the  writ  to  enter  into  a  re- 
cognisance to  pay  cosls.  There  is  a  p'.-nilar  proceeding  in  seve- 
ral British  statutes  relative  to  proceedings  by  cerliorari.  Costs 
denied. 


CHEATS. 

2  P.  C.  816.  The  distinction  between  cheats  and  larceny,  says  Mr.  Last, 
turns  principally  upon  the  consideration  whether  or  not  the  own- 
er, deceived  by  appearances,  intended  to  part  with  the  absolute 
property,  and  not  barely  with  the  possession  or  temporary  use  of 
the  thing  at  the  time  of  the  delivery,  rather  than  upon  any  actual 
difference  in  the  degree  of  fraud  meditated  by  the  taker;  the  in- 
tent, in  both  instances,  being  dishonestly  to  acquire  and  convert  to 
his  own  use  the  property  of  auother,  without  any  or  an  adequate 
consideration.  If  the  absolute  property  were  intended  to  be 
passed  by  the  delivery,  but  such  delivery  were  obtained  by  means 
of  a  false  token  or  pretence,  the  case  can  only  be  reached  by  a 
prosecution  for  a  cheat  at  common  law,  or  in  the  instance  of  a 
false  pretence  by  the  statute.  Sess-  30.  c.  2<j.  s.  1 3.  Where,  in- 
deed, the  possession  is  honestly  obtained,  upo»  a  contract  or  trust, 
in  the  first  instance,  the  subsequent  dishonest  conversion  of  it 
(except  in  cases  where  the  privity  of  contract '«  determined,)  is 
no  other  than  a  breach  of  trust,  for  w  hich  the  party  has  a  civil 
remedy. 

I.   Of  cheats  at  common  law, 
11.  By  the  statute. 

I.   Of  cheats  at  common  law. 

2  East,  P.  c.        It  is  not  every  species  of  fraud  or  dishonesty  in  transactions 

between  individuals  which  is   the   subject-matter  of  a    criminal 

prosecution  at  common  lav." ;  but  in  order  to  constitute  it  such,  it 

must  be  such  as  affects  the  public  ;  such  as  is  public  in  its  nature, 

calculated  to  defraud  numbers,  to  deceive  the   people  in  general. 

2  East.  P.  e.    A  cheat  at  common  law  consists  in  the  fraudulent  obtaining   the 

ii272B          property  of  another,  by  any  deceitful  and  illegal  practice  i  short 

so-T'Ti^R''   °^  fe'ony)  which  affects  or  may  affect  the  public  ;   as  if  a  man  use 

fulsi-  weights  and  measures,  and  bfl.'s  !  y  tii^.tn  to  all  or  many,  or 

even  one  of  h:  ,-  uses  them  in  ttiL-  «-er;cnil  course  of 

his   dealing;  so   if  a   man   defraud   a?- Jther,  n'V<  i    false  tokens. 

For  these  are  deceptions  that  common  care  and  prudence  arc  not 

. '>.  c.    sufficient  to  guard  against.   So,  if  there  be  a  conspiracy  to  cheat: 

for  ordinary  care  and  caption  is  no  guard  -.gi-.iiisi   th,-.     So  also 

playing  with  fal=e  dice  is  indictable  at  common  law. 


CHEATS.  69 

But  to  deliver  a  Ir.ss  quantity  of  merchandise  llian  was  agreed 
tor,  as  the  quantity  agreed,  though  knowing  it  was  not  the  due 
quantity,  and  with  an  intent  to  defraud  the  vendee,  is  not  indicta- 
ble; as  whore  sixteen  gallons  of  beer  were  sold  as  eighteen  gallons,   R'jx  v. 
and  ttie  price  of  it   received  as   for  eighteen   gallons :    nor  even    2  uurr.  1125. 
where  vessels  of  ale   containing  loss  than  the  true  measure  were   J,1^ *j  Wurrl 
marked  as  containing  the  true  measure,  and  were  sold  as   such,    nso.' 
Nor  where  one  commodity  is  fraudulently  sold  as  another.     So,  a**s>  ^tc(] 
where  the  defendant  pretending  that  he  wanted  to  purchase  some   o^'™'1?2?; 
lottery  tickets,  the  property  of  A,,  delivered  him  a  fictitious  order  siv-. 
on  a  banker  for  the  amount,  which  he  knew  he  had  no  authority  to   ^-p.  K.Vs"8' 
draw,  and  that  it  would  not  be  paid,  by  which  means  he  obtained 
possession  of  the  tickets  :  this  was  held  not  to  be  indictable. 

So  where  A.  had  a  judgment  against  B.  and  B.  on  pretence  that   Th?    people 
he  would  immediately  pay  part  of  the   amount  of  the  judgment  ^^^p. 
in  cash,  and  give  his  note  for  the  residue,  and  under  pretence  that  201. 
he  had  the  money  in  his  pocket,  obtained  a  discharge  of  the  judg- 
ment from  A.,  which  he  carried  oft*  without  paying  the  money  or 
giving  the  note  ;  for  which  he  was  indicted,  but  the  judgment  was 
arrested. 

Per  curiam.  In  the  present  case  we  search  in  vain  for  the 
false  token.  There  was  nothing  beyond  the  defendant's  false  as- 
sertion that  he  was  ready  to  pay  the  judgment.  Then}  was  not 
evun  the  production  of  either  note  or  money,  and  common  pru- 
dence would  have  dictated  the  withholding  of  the  receipt  until 
the  money  was  paid  and  the  note  drawn.  To  support  thi*  in- 
dictment would  be  to  overset  established  principles. 

II.  By  statute. 

From  the  preceding  observations,  it,  ia  obvious  that  a  great  2Fj»s*.  v.  c. 
number  of  the  frauds  which  may  be  committed  on  the  ignorant  8SI»M* 
and  unwary,  are  not  punishable  at  common  law,  as  it  is  confined 
lo  those  cases  merely  where  the  deceit  is  of  a  kind  calculated  to 
injure  the  public  in  general,  and  does  not  reach  those  frauds,  the 
operation  of  which  can  extend  no  farther  than  the  individuals 
affected  by  them.  This  defect  is,  however,  amply  supplied  by 
statute,  sess.  2*.  c.  58.  s.  3.  embracing  a  class  of  cases  in  which 
the  common  law  is  silent.  It  must,  however,  be  remembered,  that 
it  does  not  include  cheats  at  common  law  ;  in  which  cases  it 
would  be  improper  to  proceed  by  indictment  under  the  statute. 

Every  person  who  "shall  knowingly  and  designedly,  by  false 
pretence,  obtain  from  any  utbcr  person  any  money,  goods,  or 
chattels,  or  other  effects  whatsoever,  with  intent  to  cheat  or  de- 
fraud any  person  or  body  politic  or  corporate,"  shall  be  punished 
by  fine  and  imprisonment,  or  either.  Sess.  36.  c.  2<).  s.  13.  1  11. 
L.  410. 

Mr.  East,  speaking  of  tho  stit.  30  Gen.  2.  c.  24.  which  is  similar  2  e.  c.  42*. 
to   our  act,  observes,  that  the  term  "/a/ae  pretences"  is  of  great 


70 

latitude,  and  was  used  to  protect  the  weaker  part  of  mankind, 
because  all  were  not  equally  prudent ;  itseems  difficult,  therefore, 
to  restrain  the  interpretation  of  it  to  such  false  pretences  only, 
against  which  ordinary  prudencR  cannot  he  supposed  sufficient  to 
guard.  But  still  it  may  he  a  question  whether  the  statute  in- 
tends to  every  false  pretence,  either  absurd  or  irrational  upon  the 
face  of  it,  or  such  as  the  party  has  at  the  very  time  the  means  of 
detecting  at  hand  :  or  whether  the  words,  which  are  general,  shall 
he  construed  co-extensively  with  the  cheat  actually  effected  by 
means  of  the  false  pretence  used.  These  may  perhaps  be  mat- 
ters proper  for  the  consideration  of  the  jury,  with  the  advice  of 
the  court,  and  I  will  not  attempt  to  draw  any  precise  line  on  the 
subject. 

Yv"T1v.T-riiv-  T'le  defendants  were  indicted  for  obtaining  money,  under  pre- 
ss. '  '  '  tence  of  a  bet  having  been  made  on  a  race  to  be  run  the  next  day, 
from  K.  and  contributed  by  him  as  a  part  of  the  bet,  which 
was  pretended  to  have  been  made  up  by  the  defendants.  They 
•were  found  guilty,  and  the  judgment  was  affirmed  on  error  in  the 
king's  bench.  Per  BULLER,  J.  The  ingredients  of  this  office 
are  the  obtaining  money  by  false  pretences,  and  with  an  intent  to 
defraud.  Barely  asking  another  for  a  sum  of  money  is  not  suiB- 
cient  ;  but  some  pretence  must  be  used,  and  that  pretence  false  ; 
and  the  intent  is  necessary  to  constitute  the  crime.  If  the  intent 
be  made  out,  and  the  false  pretence  used  in  order  to  effect  it,  it 
brings  the  case  within  this  statute. 

Wtcli-irs  So  where  a  workman,  being  employed  to  keep  an  account  of 

p'/c.  33<\S '  the  number  of  men  employed  in  a  certain  business,  and  of  the 
amount  of  their  earning,  which  he  delivered  weekly,  and  was  paid 
the  amount,  delivered  an  account  of  men  who  had  not  been  em- 
ployed, as  having  earned  different  sums  of  money,  and  false  ac- 
counts of  the  work  of  those  who  were  employed,  whereby  he  ob- 
tained a  larger  sum  than  was  due, 

«e.xv.  Airey,        So  where  a  common  carrier,  on  pretence  of  having  delivered 
a^East,  Rep.  goo(jsto  the  bailee,  and  taken  a  receipt  from  him,  which  he  had  lost 
or  mislaid,  obtained  money  from  the  person,  of  whom  he  had  re 
ceived  the  goods,  for  the  carriage. 


COIN. 

<:  If  any  person  shall  counterfeit,  or  cause  or  procure  to  be 
counterfeited,  or  aid  or  assist  in  counterfeiting  any  of  the  species 
of  gold  or  silver  coins  now  current,  or  hereafter  to  be  current  in 
this  state,  or  shall  pass  or  give  in  payment,  or  offer  to  pass  or  give 
in  payment  the  same,  knowing  the  same  to  be  counterfeited,  then 
every  such  person,  being  thereof  convicted  according  to  the  due 
course  of  law,  shall  he  defined  guilty  of  felony."  Scss.  36.  c. 
44.  s.5.  :  R.  L.  405. 


COMMITMENT. 

':  If  any  person  shall  have  in  his  possession,  or  receive  from 
any  other  person,  any  counterfeit  gold  or  silver  coins  now  current, 
or  hereafter  to  he  current  in  this  state,  with  intention  to  utter  or 
pass  the  same,  or  to  permit,  cause,  or  procure  the  same  to  he  ut- 
tered or  passed,  with  intention  to  defraud  any  person  or  body 
politic  or  corporate  whatever,  knowing  the  same  to  he  counter- 
feited,  then  every  such  person,  being  thereof  convicted,  shall  be 
deemed  guilty  of  felony."  s.  (j. 

Offenders  under  the  5th  section  of  this  act  are  punishable  with 
imprisonment  for  life  in  the  state  prison  ;  and  under  the  next  sec- 
tion, withr  imprisonment  in  the  state  prison  for  a  term  not  ex- 
ceeding seven  years.  Seas.  36.  c.  29.  s.  3.  8.  I  R.  L».  408.  f). 


COMMITMENT. 

I.  Wlto  may  le  committed. 

II.  To  what  place. 

III.  Form  of  ike  commitment, 

IV.  Charges  of  the  commitment. 
V.  Commitment  discharged. 

I.   W ho  may  be  committed. 

There  is  no  doubt  but  that  persons  apprebended  for  offences  2I*a" 
which  are  not  bailable,  and  also  all  persons  who  neglect  to  offer 
bail  for  offences  which  are  bailable,  must  be  committed.  And  it 
is  said,  that  wheresoever  a  justice  of  the  peace  is  empowered  by 
any  statute  to  bind  a  person  over,  or  to  cause  him  to  do  a  certain 
thing,  ai>d  such  person,  being  in  his  presence,  shall  refuse  to  bf, 
bound,  or  to  do  such  thing,  the  justice  may  commit  him  to  the 
gaol,  to  remain  there  till  he  shall  comply. 

The  justice  has  power,  on  examination  of  a  charge  of  suspicion  Srcorv.  T 
of  felony,  or  of  having  stolen  goods,  to  dismiss  the  party,  if  he  be  K^P.' 2<?°.h 
satisfied  that  there  is  no  ground  for  the  suspicion;  or  if  the  fact  aH»i<-.  P. 
charged  as  a  felony  be  in  truth  no  felony  in  point  of  law,  the  jus- 
lice  may  discharge  him  ;  as  if  a  man  be  charged  with  felony  for 
stealing  what,  is  parcel  of  the  freehold,  or  for  carrying  away  what, 
was  delivered  him,  and  such  like,  for  which,  though  there  may 
be  cause  to  bind  him  over  as  for  a  trespass,  the  justice  may  dis- 
charge him  as  to  felony,  because  it  is  not  felony.  But  if  a  man 
kill  another  by  misadventure,  or  in  self  defence,  or  if  a  man  be 
killed  in  making  an  assault  upon  a  minister  of  justice,  none  of 
which  are  felony,  yet  the  person  who  has  committed  the  homi- 
cide ought  not  to  be  discharged,  for  he  must  undergo  his  trial  for 
it ;  and,  therefore,  he  must  be  committed,  or  at  least  bailed.  And 
if  a  prisoner  be  brought  before  a  justice  of  the  peace,  expressly 
charged  with  felony  on  oath,  he  cannot  discharge  him,  but  must 


72  COMMITMENT. 

hail  him,  or  commit  him,  if  the  case  he  one  in  which  the  law 
not  allow  hail,  or  docs  not  permit  it  to  he  taken  !>y  a  justice. 
Palt.c.  170.  Commitment  by  justices  of  the  peace  in  almo.-t  all  cases  (ex- 
cept for  the  peace,  good  behaviour,  felony,  or  higher  offences)  is 
but  to  retain  the  party  until  he  has  paid  a  fine;  and  iherefore,  ii' 
he  offer  to  pay  it,  or  find  sureties  by  recognisance  to  pay  it,  he 
ought  not  to  be  committed,  but  should  be  discharged  immedi- 
ately. 

II.  To  u-Jt at  place. 

Felons  are  to  be  committed  to  gaol  until  trial,  except  in  the 
city  and  county  of  New-York,  where  they  are  to  be  committed 
to  the  city  prison,  or  bridewell. 

Se<=t.  11  <?..-].        Disorderly  persons  are  to  be  committed  to  the   bridewell,  or 
??..-.  iR.L.   nousc  of  correction  ;  and   in  those  counties  in  which  there  is  no 
bridewell  or  house  of  correction,  the  gaol  shall  be  considered  and 
used  as  such. 

Halt.  c.  170.         Generally',  if  a  man  commit  felony  in  one  county,  and  be  ar- 
rested for  the  same  in  another  county,  he  shall  be  committed  to 
gaol  in  the  county  where  he  is  taken.     But  if  a  man,  having  beeu 
arrested,  escape,  and  is  taken  on  fresh   suit  in  another  county, 
he  may  be  carried  back  to  the  county  where  he  was  first  taken. 
Se«.  24  c.  3i.        Where  a  person  is  taken  on  an  endorsed  warrant,  if  his  offence 
no.  "   he  not  bailable,  or  he  shall  not  give  satisfactory  bail,  he  is   to  be 

conveyed  to  a  justice  of  the  peace  of  the  county  where  the  offence 
wras  committed. 

III.  Form  of  the  commitment. 

sHawk.c.is.  It  must  be  in  writing,  under  the  hand  and  seal  of  the  person  by 
i2*3  f  ill-'  w'ioin  it  is  made,  and  expressing  his  office  or  authority,  though 
47?.  this  is  not  always  necessary,  for  the  seal  and  subscription  of  the 

justice  to  the  mittimus  is  sufficient  direction  to  the  gaoler,  and 
the  time  and  place  at  which  it  is  made,  and  must  be  directed  to 
the  gaoler  or  the  keeper  of  the  prison.  It  should  likewise  con- 
tain the  name  and  surname  of  the  party  committed,  if  known;  if 
not  known,  then  it  may  be  sufficient  to  describe  the  person  by 
his  age,  stature,  complexion,  colour  of  his  hair,  and  the  like,  and 
to  add,  that  he  refuses  to  teli  his  name. 

7  East,  536.  But  by  the  commitments  here  spoken  of,  are  meant  commitments 
to  the  custody  of  sheriffs,  gaolers,  fee.  For  it  cannot  be  doubt- 
ed but  that  a  magistrate  might,  by  parol,  order  an  offender  to  be 
detained  in  custody  until  he  could  make  out  his  warrant  of  com- 
mitment. So  a  magistrate,  in  the  case  of  a  breach  of  the  peace 
within  his  view,  might  instantly  order  the  offender  to  be  taken  in 
to  custody. 

*  Y*'*2 Ha\«'  ^'ie  comm'tment  ought  to  set  forth  the  crime  alleged  against 
U2.  '  the  party  with  certainty  ;  otherwise  the  officer  is  not  punishable 


COMMITMENT.  7$ 

by  reason  of  such  mittimus,  for  suffering  the  party  to  escape,  and 
the  court  before  whom  he  is  removed  by  habeas  corpus,  will  dis- 
t;  or  bail  him  :  and  this  holds  not  only  \v  here  no  cause  at  all 
is  expressed  hi  the  commitment,  but  ;dso  \viiV.re  it  is  so  loosely 
set  forth  tiiatthe  court  cannot  judge  whether  it  weie  <•  reasonable 
ground  of  imprisonment.  Thus,  the  i-uir.mitment  ought  not  to 
fce /or /dony  generally,  but  it.  must  brirlly  se.t  forth  the  special 
nature  .  '  ny,  &a,  for  felongjbr  the  dcnili  of  J.  S.t  or  fr>r  bur- 

g!'"  ,  ;c-  itf  J.  <S*. 

i.icularit}   does  not  make  the  commit-   1  Hale, 534. 
merit  ,»i>.sol;n>iy  void,  so  as  to  subject  the  gaoler  to  false  iuiprison- 
if  an  action  should  be  brought  against  him,  he  may  ex- 
'.''r-y  .-uvrri.jg  that  the  commitment  was  for  felony. 

•:;try  that  the  act  should  be  charged  in  the  warrant  ^"-rVm iu^' 
i  nitriient  to  have  been  done  feloniously  ;  it  is  sufficient  if,  235. 
on  the  facts  stated,  ii  clearly  appear  that  the  act  was  feloniously 
committed. 

A  commitment  in  execution  must  be  preceded  by  a  conviction,  ^o^T'rlrm 
and  the  mi'tinns  must  state  that  the  defendant  was  convicted  of  Rep.  sog. 

io  him  ;  merely  to  state  that  he  was  charged 
with  it  is  insuiiicient,  and  the  party  may  be  discharged  on  habeas 
cor: 

Where  a  party  is  committed  in  execution  after  conviction  be-  ^e\  v.  York, 
fore  a  justice,  the  warrant  of  commitment  must  show  before 
whom  the  conviction  was,  and  the  authority  to  convict :  as  where 
the  commitment  was  in  these  words  :  "  Receive  into  your  custody 
the  bodies  of,  fcc.  brought  before  me  by  W.  M.  and  other  consta- 
bles, and  convicted  upon  the  oath  of  W.  H.  for  being  loose,  idle, 
disorderly  persons,  fee.;"  which  was  returned  to  a  habeas  cor- 
pus, it  was  adjudged  insufficient,  and  the  prisoners  were  dis- 
charged. 

A  commitment,  setting  out  the.  character  in  which  the  prisoner  Rex  v.  Ever- 
is  committed  in  the  disjunctive,  is  bad:  as  where  an  apprentice  ^>Caldecotti 
was  committed  for  running  away  from  his  master,  and  the  com- 
mitment ran  thus  :  "  As  an  apprentice  or  servant,  for  disobeying 
his  indentures  or  articles." 

It  is  safe  to  set  forth  that  the  party  is  charged  upon  oath  ;  yet  2  Hawk.  c.i6., 
this  is  not  necessary.  Abr76iiBaio 

But  by  the  fourth  article  of  the  amendments  to  the  constitution  Johns.  Rep. 
of  the  United  States,  it  is  declared,  that  no  warrant  shall  issue, 
but  upon  probable  cause,  supported  by  oath  or  affirmation.     And 
the  supreme  court  of  the  United  States,  in  the  case  ex  parte  Bur-  3  cran.448, 
ford,  decided  that  a  warrant  of  commitment  is  illegal  if  it  does 
not  state  some  good  cause  certain,  supported  by  oath. 

Every  such  mittimus  ought  to  have  a  lawful  conclusion,  viz.  if  2Hawk.c.ie. 
he  be  committed  as  a  criminal,  until  he  be  delivered  by  due  course  s>  18' 
of  law  ;  if  he  be  committed  for  contumacy,  it  should  be  until  he 
comply;  and  if  the  party  be  committed  only  for  want  of  bail,  it 
seems  to  be  a  good  conclusion  of  the  commitment,  that  ha  be  kept 

[    10] 


*. 

COMMITMENT. 

till  he  find  bail :  but  a  commitment  till  the  person  who  makes  it 
shall  take  further  order,  seems  not  to  be  good  ;  and  it  seems  that 
the  party  committed  by  such,  or  any  other  irregular  mittimus, 
may  be  bailed.  See  further,  I  R.  L.  1  15.  and  infra. 

A  commitment  generally,  to  prison,  not  specifying  what  gaol, 
or  directed  to  any  particular  gaoler,  is  bad. 

earth.  152.  A  commitment  grounded  on  a  statute  ought  to  be  conformable 
to  the  method  prescribed  in  it;  as  where  the  churchwardens  of 
Northampton  were  committed  on  the  43  Eliz.  c.  '2.  and  the  war- 
rant concluded  in  the  common  form,  viz.  until  they  be  duly  dis- 
charged according  to  law  ;  but  the  statute  appointed  that  the 
party  should  there  remain  until  he  should  account ;  for  want  of 
such  conclusion  they  were  discharged. 

3  Burr.  1636.  A  commitment  of  a  man  as  a  rogue  and  a  vagabond,  under  17 
Geo.  II.  c.  5.  s.  7.  (see  sess.  1  I.e.  3J.s.  1.  1  R.  L.  114.)  for  run- 
ning away  and  leaving  his  wife  and  children  to  be  maintained  by  the 
parish,  there  to  remain  until  he  shall  be  discharge*!  according  to 
the  laws  and  customs  of  this  realm,  was  holden  to  be  bad,  because 
it  did  not  contain  a  direct  allegation  that  the  wife  and  children 
were  chargeable,  and  because  the  commitment  directed  by  the 
statute  is  for  a  limited  time,  whereas  this  was  indefinite. 

i  T«rrm  Rep.       ^he  legislature  having  given  magistrates  a  power  of  examin-' 

653.  ing  a  pauper  touching  his  settlement,  it  seems  that  they  must  ne- 

cessarily have,  as  incidental  to  such  power,  a  power  of  committing 
to  prison,  in  case  ,of  his  refusal  to  answer  their  questions  ;  if  so, 
a  commitment,  until  he  shall  ansicer,  is  good. 

i  Hale, 534.  An  omission  to  specify  the  kind  of  felony  in  the  warrant  seems 
not  to  render  it  absolutely  void,  so  as  to  subject  the  gaoler  to  an 
action  of  false  imprisonment ;  but  he  need  not  receive  a  prisoner 
on  such  warrant.  Yet  if  he  do  receive  him,  and  is  acquainted  what 
the  crime  is,  and  suffer  the  prisoner  to  escape,  it  is  felony. 

Though  the  warrant  of  commitment  be  informal,  yet  if  upon 
the  depositions  returned  with  the  habeas  corpus,  the  court  see  that 
a  felony  has  been  committed,  and  that  there  is  a  reasonable 
ground  of  charge  against  the  prisoner,  they  will  not  bail,  but  re- 
mand him. 

Where  an  offender  is  committed  to  the  bridewell,  or  house  of 
correction,  by  any  justice  or  justices,  for  offences  cognisable  be- 
fore them,  out  of  the  general  sessions  of  the  peace,  and  where 
tin;  time  and  manner  of  their  punishment  is  not  directed  or  li- 
mited by  law,  it  is  enacted,  "  that  where  any  offenders  shall  be 
committed,  as  aforesaid,  by  virtue  of  any  law  now  in  being,  or 
hereafter  to  be  made,  other  than  in  cases  of  petit  larceny,  and 
the  time  and  mannerof  their  punishment  is  not  expressly  limited, 
directed,  and  apppointed,  the  said  justice  or  justices  shall  com- 
mit such  offender  to  the  bridewell,  or  house  of  correction,  there 
fn  bo.  kept  to  hard  labour  until  the  next  general  sessions  of  the 
peace,  or  until  discharged  by  a  dut  course  of  law  ;  and  it  shall 
3*i»nd  may  b«  lawful  for  two  juvijes,  of  whom  the  justice  wha 


COMMITMENT.  75 

committed  such  offender  to  he  one,  to  discharge  such  offender 
before  the  said  general  sessions  of  the  peace,  if  they  shall  see 
cause  ;  find  if  he  or  she  shall  not  be,  so  discharged,  the  said  gene- 
ral sessions  of  the  peace  may  either  discharge  him  or  her,  or 
continue  him  or  her  in  custody,  for  such  time  as  they  shall  see  fit, 
not  exceeding  six  months."  Sess.  IJ.c.  31.  s.  2.  1  H.  L.  111. 

IV.   Charges  of  the  commitment. 

"  Every  person  who  shall  he  lawfully  committed  to  the  com- 
mon gaol  in  any  city  or  county  of  this  state,  for  any  crime  or 
misdemeanour,  having  means  thereto,  shall  hear  his  or  her  own 
reasonable  charges  for  conveying  him  or  her  to  the  said  gaol,  and 
the  charges  also  of  such  as  shall  be  appointed  to  guard  him  or 
her  to  the  said  gaol,  and  shall  guard  him  or  her  thither.  And  if 
any  such  person,  so  to  be  committed  as  aforesaid,  shall  refuse  at 
the  time  of  his  or  her  commitment,  and  sending  to  the  said  gaol, 
to  defray  the  said  charges,  or  shall  not  then  pay  or  bear  the  same, 
then  any  justice  of  the  peace  of  the  county  shall,  by  writing 
under  his  hand  and  seal,  after  conviction  of  the  person  so  com- 
mitted, give  warrant  to  any  constable  of  the  town  where  such 
person  so  committed  shall  inhabit,  or  where  he  shall  have  any 
goods  within  the  same  city  or  county,  to  levy,  by  distress  and  sale 
of  the  goods  and  chattels  of  the  said  person  so  to  be  committed, 
so  much  money  as,  by  the  discretion  of  the  said  justice,  shall  pay 
the  charges  of  his  or  her  conveying  and  sending  to  gaol;  and 
when  any  person,  not  having  goods  or  money  within  the  city  or 
county  where  he  or  she  shall  be  taken,  sufficient  to  bear  the 
charges  of  himself  or  herself,  and  of  those  who  convey  him  or 
hut,  is  lawfully  committed  to  gaol,  then  on  application  by  any 
constable  or  other  officer,  who  conveyed  him  or  her  to  gaol  as 
aforesaid,  to  any  justice  of  the  peace  for  the  same  city  or  county, 
the  justice  shall,  upon  oath,  examine  into  and  ascertain  the  rea- 
sonable allowances  to  be  made  to  such  constable  or  other  officer, 
both  for  his  expenses  and  trouble  ;  the  said  allowance  for  trouble 
not  to  exceed  six  cents  for  each  mile  that  he  shall  travel  to  con- 
vey the  said  offender  to  gaol  as  aforesaid  ;  and  the  said  justice 
shall  forthwith,  without  fee  or  reward,  by  warrant  under  his  hand 
and  seal,  order  the  treasurer  of  the  city  or  county  to  pay  the  same, 
which  the  said  treasurer  is  hereby  required  to  do  as  soon  as  he 
receives  such  warrant,  and  shall  have  monies  in  his  hands."  Sess. 
30.  c.  8.  s.  15.  1  ILL.  497. 


V.  Commitment  discharged. 

person  legally  committed  fora  crime,  certainly  appearing  to   2  iia  ,-;.. 

been  done  by  some   one  or  other,  cannot   be  lawfully  dis-  l6- «•''•• 
e&arged  til!  ho  be   acquitted  on  his  trial,  or  have  an  ignoramus 
found  by  the  grand  jury,  or  none  to  prosecute  him  nn  a   prorla- 


A 

have 


76  CONSPIRACY. 

mation  for  that  purpose  by  the  justices  of  gaol  delivery.  Cut  it  a 
person  be  committed  on  a  bare  suspicion,  without  any  indictment, 
for  a  supposed  crime,  where  afterwards  it  appears  that  there  w  as 
none,  as  for  the  murder  of  a  person  thought  to  be  dead,  who  af- 
terwards is  found  to  be  alive;  it  has  been  holden  that  he  may 
safely  be  dismissed  without  any  farther  proceeding,  for  that  he 
who  suffers  him  to  escape  is  properly  punishable  only  as  an  ac- 
cessory to  his  supposed  offence  ;  and  it  is  impossible  that  there, 
should  be  an  accessory  where  there  can  be  no  principal  ;  and  it 
would  be  hard  to  punish  one  for  a  contempt  in  disregarding  a 
commitment  founded  on  a  suspicion,  appearing  in  so  uncontested 
a  manner  to  be  groundless. 


CONSPIRACY. 

i  Hawk.  c.  All  confederacies  whatsoever,  wrongfully  to  prejudice  a  third 

iz.  s.  2.  person,  or  the  community,  are  highly  criminal  at  common  law;  as 
where  divers  persons  confederate  together  by  indirect  mean-  to 

The    People  impoverish  a   third  person,  to  defraud  him  of  his  money,  fal-ely 

Johm^c'ases^  ant^  maliciously  to  charge  him  with  being  the  reputed  father  of  a 

3io-  bastard  child,  or  to  maintain  one  another  in  any  matter,  whether 

itcxv.R-.spai  it  he  true  or  false,  or  to  injure  a  man  by  charging  him   with,  a 

'  crime,  or  where  several  persons,  in  order  to  obtain  the  r. 


case,  Foster,  under  an  English  act  of  parliament  for  apprehending  highway- 

men, agree  that  one  of  them  shall  procure  a  man  to  rob  ;> 
3  Burr.  1321.  of  them,  which  is  accordingly  done  :  and   every  conspiracy  is   a 
TCI*  13  East    trespass,  and  tends  to  a  breach  of  the  peace.    But  a  mere,  agree- 
22s!  '  mt'nt  to  commit  a  civil  trespass,   as  to  go  on  the  lands  of  •ne- 

ther, does  not  amount  to  a  conspiracy. 

By  statute,  sess.  24.  c.  87.  s.  3.  "  all  persons  who  confederate 

by  oath,  agreement,  or  other  alliance,  falsely  and  maliciously  to 

indict,  or  cause  to  be   indicted,  any  person,  or   falsely  to   move 

and    maintain  any  plea  or  suit,  shall   be  adjudged  conspirators." 

1  R.  L.  173. 

i  Hawk.  c.  Not  less  than  two  persons  can  be  guilty  of  a  conspiracy  ;  but 
".Johns  l^e  conviction  of  two  persons  is  not  requisite  to  constitute  the 
Cases,  318.  crime  of  conspiracy,  for  if  one  conspirator  die  before  conviction, 

or  indictment,  the  other  may  be  convicted. 
i  Str.  144.  Persons  acting  with  one  intent,  and  for  a  common  purpose, 

although  not  more  than  one  be  present  at  any  single  act,  may  be 

guilty  of  a  conspiracy. 
4_  BI.   Com.        Conspirators  are  punishable  by  fine  and  imprisonment,  and  the 

party  injured  is  likewise  entitled  to  an  action  for  damages. 


CONSTABLE.  77 


CONSTABLE. 

I.  How  chosen  and  sworn. 
II.   His  duties  and  power. 
If!.   His  indemnity  and  protection  in  Iris  cjjlce. 
IV.  HisftGs. 

I.  How  chosen  and  sicorn. 

The  constitution  of  the  state  of  Wew-York,  s.  29.  declares, 
•:  tha'  rn'.v.i  clerks,  supervisors,  assessors,  constables,  and  collec- 
tors and  all  oilier  officers  heretofore  eligible  by  the  people,  shall 
always  continue  to  be  so  eligible,  in  the  manner  directed  by  the 
present  or  future  acts  of  the  legislature." 

As  many  constables  as  shall  seem  necessary  and  convenient  to 

the  inhabitants  of  each  town,  or  the  major  part  of  them,  shall  be 

chosen  at  the  amuuu  town  meeting  ;  and  in  case  of  a  constable's 

refusing  to  serve,  or  death,  or  removing  from  the  town,  or  becom- 

°apable  of  serving,  the  vacancy  may  be  supplied   by  a  spe- 

lei'ting.     If  within  fifteen  (lays  next  after  such  refusal, 

.!.   or  incapacity,  no  other  shall  be  chosen  by  the 

any  three  justices  of  the  peace  of  the  county,  residing  in  or 

he  town,  may  supply  the  vacancy. 

.;st  be  inhabitants  of  the  towns  for  which  they  are 
3o.  c.  35.  s.  1.5.      1  R.  L.  J'_>5. 

Every  constable  must  take   and  sui.-scrihe  the  following  oath, 

•  he  enters  on  the  execution  of  his  office,  within  fifteen  days 

after    his    appointment,   before    a  justice   of   the   peace:  "/  dn 

.   :;>d  sincerely  swear,  or  affirm,  that  I  will  in  all  things,  to 

'ge,  understanding,  and  ability,  well  andfailh- 

•'•?.  and  perform  the  trust  reposed  in  me,  as  a  constable  of 

the  (here  insert  the  name  of  the  place,)  in  the  county  of  (here  in- 

seri   flit-,  name  of  the  county.)"     The    justice  is    then  to  deliver 

t!ie    riui,  and  a    certificate  of  the   time  when   taken,   to  the  con- 

sta '»!.',  who,  within  eight  dayrs  thereafter,  must  transmit  or  deliver 

the  same  to  the  clerk  of  the  town.     s.  7. 

Every  constable,  "shall,  before  he  enters  upon  the  duties  of 
his  office,  and  within  ten  days  after  his  election,  or  appointment, 
to  be  approved  of  by  the  town  clerk,  or  by  the  supervisor  of  the 
town  or  ward,  execute  under  their  hands  and  seals,  before  such 
supervisor  or  town  clerk,  and  cause  to  be  filed  in  the  office  of  the 
clerk  of  such  town,  an  instrument  in  writing-,  by  which  such  con- 
stable, and  his  sureties,  shall  jointly  and  severally  agree  to  pay  to 
each  and  every  person,  such  sum  of  money  as  the  said  constable 
shall  become  liable  to  pay,  for,  or  on  account  of  any  execution 
which  shall  be  delivered  to  such  constable  for  collection;  and  on 
which  instrument  the  said  town  clerk,  or  supervisor,  of  such  town 
or  ward,  shall  endorse,  that  he  approves  of  the  sureties  therein 


78  CONSTABLE. 

named  ;  and  every  such  constable,  and  his  sureties,  shall  joint!  j 
and  severally  be  responsible  to  each  and  every  person  to  whom 
such  constable  shall  become  liable,  to  pay  any  sum  of  uioney  for, 
or  on  account  of,  any  execution  which  shall  be  delivered  to  such 
constable  for  collection,  in  the  same  manner  as  such  constable 
would  have  been  responsible  had  this  act  not  been  passed  ;  and  a 
copy  of  such  instrument  certified  by  the  clerk  of  such  town, 
shall  be  prima  facie  evidence,  in  all  courts,  of  the  execution  of 
such  instrument  by  such  constable  and  his  sureties."  Sess.  30. 
c.  3*.  s.  1.  2  R.  L"  126. 

If  any  person  elected  constable  shall  refuse  to  take  upon  him 
or  to  serve  in  such  office,  and  if  he  shall  not  take  and  subscribe 
the  oath  appointed,  and  deliver  it  to  the  town  clerk  within  the 
time  limited,  or  shall  not  give  the  security  required  within  the 
time  limited,  it  shall  be  deemed  a  refusal  to  serve,  in  which  cases, 
as  also  for  proceeding  in  the  execution  of  his  office  without  giving 
the  security  required,  he  shall  forfeit  the  sum  of  sixty-two  dollars 
and  fifty  cents,  s.  9. 

All  suits  or  actions,  on  any  bond  executed  by  any  constable 
nnd  his  sureties,  for  the  faithful  performance  of  the  duty  of  his 
office,  shall  be  prosecuted  within  two  years  after  the  expiration 
of  the  year  for  which  such  constable  shall  be  elected.  Sess. 
.36.  c,  203.  s.  23.  2  R.  L.  137. 

II.  His  duties  and  power. 

Every  constable  is,  by  common  law,  a  conservator  of  the  peace 
within  his  limits.  See  more  particularly  on  this  subject,  AF- 
FRAY, III. 

Kac.  AW.  As  the  constable  h  the  proper  officer  to  a  justice  of  the  peace, 
he  is  bound  to  execute  his  warrants.  Hence  it  has  been  resolved, 
that  where  a  statute  authorizes  a  justice  of  the  peace  to  convict  a 
man  of  a  crime",  and  to  levy  the  penalty  by  warrant  of  distress, 
without  saying  to  whom  such  warrant  shall  be  directed,  or  by 
whom  it  shall  be  executed,  the  constable  is  the  proper  officer  to 
serve  such  warrant,  and  is  indictable  for  disobeying  it. 

ibid.  Yet  inasmuch  as  the  office  of  constable  is  wholly  ministerial, 

and  no  ways  judicial,  it  seems  that  he  may  appoint  a  deputy  to 
execute  a  warrant  directed  to  him,  where,  by  reason  of  sickness, 
absence,  or  otherwise,  he  cannot  do  it  himself  :  but  without  some 
such  special  cause  a  constable  cannot  make  a  deputy. 

4  El.  Com.  A  constable  may,  without  warrant,  arrest  any  one  for  a  breach 
292.  2Es?.  of  the  peace  committed  in  his  view,  and  carry  him  before  a  jus- 
tice of  the  peace.  And  in  case  of  felony  actually  committed,  or 
a  dangerous  wounding  whereby  felony  is  like  to  ensue,  he  may, 
upon  probable  suspicion,  arrest  the  felon  ;  and  for  that  purpose  is 
authorized  (as  upon  a  justice's  warrant)  to  break  open  doors,  and 
even  to  kill  the  felon  if  lie  cannot  otherwise  be  taken  ;  and  if  he 
or  his  assistants  be  killed  in  attempting  such  arrests,  it  ismunVr 
in  all  concerned. 


CONSTABLE.  7<J 

If  a  constable  has  notice  that  a  burglary  has  been  committed,   cro.Eiiz.652 
it  is  his  duty  to  pursue  the   felon  immediately,  though    in  the. 
night. 

If  a  constable  or  a  private  person  see  a  person  expose  an  infant  s  Hawk.  c. 
in  the  street,  who  refuses  to  take  it  away,  he  may  lawfully  detain  Bac.SAbi9.688* 
and  apprehend  such   person  till  he  or  she  shall  consent  to  take 
care  of  it. 

Constables  are  required  to  aid  and  obey  inspectors  of  elections   2R.  L.  zse. 
ia  committing  disorderly  persons. 

III.  His  indemnity  arid  protection  in  his  office, 

Constables  are  justifiable  in  arresting  persons  directly  charged   Doug.  359. 
with  felony,  although  it  should  appear  that  no   felony   had  been 
committed.     And  where  a  felony  hath  actually  been  committed,    Cald.  291. 
they  are  justified  in  making  an  arrest,  provided  they  act   bona 
fde,   and   in  pursuit  of  the  offender,  upon   such  information  as 
amounts  to  a  reasonable  and  probable   ground  of  suspicion.     In 
this  case,  indeed,  a  private  person  may  arrest,  ihoughjiot  in  the 
former. 

A  constable  cannot  justify  any  arrest  by  force  of  a  warrant  2  Hawk.  c. 
from  a  justice  of  peace,  which  expressly  appears  on  the  face  of 
it  to  be  for  an  offence  whereof  a  justice  of  the  peace  has  no 
jurisdiction,  or  to  bring  the  party  before  him  at  a  place  out 
of  the  county  for  which  he  is. a  justice.  But  any  constable  to 
whom  a  warrant  shall  be  directed  from  a  justice  of  the  peace, 
to  arrest  a  particular  person  for  felony,  or  any  other  misde- 
meanour within  his  jurisdiction,  may  lawfully  execute  it,  whe- 
ther the  person  mentioned  in  it  be  in  truth  guilty  or  innocent,  and 
whether  any  felony  were  in  truth  committed  or  not  ;*  for,  however 
the  justice  may  himself  be  punishable  for  granting  such  a  warrant 
without  sufficient  grounds,  it  is  reasonable  that  he  alone  be  an- 
swerable for  it,  and  not  the  officer,  who  is  not  to  examine  or 
dispute  the  reasonableness  of  his  proceeding. 

So  if  a  constable  seize  goods  in  obedience  to  a  warrant,  he  is   2  BOS.  fcrni. 
protected,  whether  the  warrant  be  legal  or  not  ;    or  if  he  direct   153- 
the    seizure   of  stolen   goods,  and  the    goods  seized    turn    out 
not  to  be  stolen. 

A  constable  appointed  by  three  justices  may  justify  under 
the  appointment  for  acts  done  by  him  as  constable,  although  the 
appointment  may  have  been  improperly  made  ;  and  its  validity 
cannot  be  questioned  in  an  action  against  the  constable.  In 
Wood  v.  Peake,  the  court  said,  this  appointment  is  a  judicial  act,  s  j0Uns.R*j». 


*  So  a  constable  may  execute  a  mittimus,  from  a  special  sessions, 
stating  the  conviction  ta  have  been  in  a  case  in  which  they  Lave  jurisdic- 
tion, and  the  warrant  being  regular,  although  the?  cwuvi' 'li>;u  \v-i- 
neous.     10  Johns.  Ref.  138. 


SO  CONSTABLE. 

for  the  justices  must  first  determine  and  adjudge  that  there  is  a 
vacancy  in  the  office,  and  that  the  town  neglected  to  till  it  uj>. 
It  is  not  traversable  in  such  a  collateral  action.  The  appoint- 
ment remains  valid  until  it  be  set  aside  or  quashed  in  the  regular 
course  upon  certiorari.  It  is  certainly  sufficient  to  justify  the 
countable.  He  comes  to  the  office  by  an  appointment,  regular 
according  to  the  forms  of  law,  and  made  by  a  tribunal  I 
jurisdiction  in  the  case,  and  he  is  bound  to  accept  under  a 
penalty.  He  is  not  to  inquire,  at  his  perH,  into  the  validity  of 
the  act.  It  is  sufficient  that  three  justices  have  authority  to  make 
such  an  appointment  in  the  given  case.  It  would  be  intole- 
rably oppressive  to  place  the  constable  in  the  dilemma  of  sub- 
jecting himself  to  a  grievous  penalty  if  he  refuses,  or  cf  being 
prosecuted  for  trespass  it'  he  accepts.  If  two  j'jstk'c-s  only 
should  appoint  him,  it  would  then  be  a  case  in  which  no  jurisdic- 
tion existed,  and  the  appointment  would  be  null  and  void.  The 
distinction  in  the  books  is  between  cases  where  the  authority 
proceeds  from  a  source  possessing  jurisdiction  over  the  subject 
matter,  and  from  one  that  does  not.  The  ministerial  officer  can 
justify  in  one  case  and  not  in  the  other. 

If  a  constable  be  sued  for  any  thing  done  in  the  execution  of 
his  ol'ice,  he  and  all  who  assist  him  may  plead  the  genen'l  issue 
not  guilty,  and  give  the  special  matter  in  evidence  ;  and  on  a 
verdict  for  the  defendant,  or  on  the  plaintiff's  becoming  n 
or  discontinuing,  he  shall  have  double  costs.  And  the  action  ran 
be  laid  only  in  the  county  where  the  fact  was  cpmmitted  ;  for  if 
the  plaintiff  shall  not  prove  the  cause  of  action  in  the  county 
where  laid,  the  jury  shall  find  the  defendant  not  guilty.  Sess.  24. 
c.  47.  s.  1.  1  R.  L.  155. 

i  Bae.  Abr.  Where  the  constable  is  not  acting  in  the  execution  of  his  office, 
1742.  s  fcast  or  does  not  pursue  the  directions  of  the  warrant,  this  act  docs 
p.  t.  233.  not  protect  him. 

Hogmv.  \Vhere    a    constable   executes    a    warrant  in  an  unreasonable 

Brewtter, 

s  Johns. Uep.  and  oppressive  manner,  and  with  the  avowed  and  malicious  de- 
sign to  vex  and  oppress  the  party,  an  action  will  lie  against  him. 
As  where  a  constable  had  a  warrant  to  levy  a  fine,  and  refused 
to  take  the  property  which  the  plaintiff"  tendered  him,  but  took 
his  horse,  with  the  avowed  intent  of  hurting  his  feelings,  it  was 
held  that  an  actiort  on  the  case  might  be  maintained. 

4  H.p.  so.  S0  if  the  constable  make  himself  a  party  in  oppressing  a  per- 

son committed  to  his  custody,  he  will  be  liable. 

IV.  His  fees. 

By  the  act  regulating  fees,  (sess.  36.  c.  83.  2  R.  I..  27.)  the 
following  fees  are  allowed  a  constable  : 
For  serving  a  warrant,  nineteen  cents. 
Serving  a  summons,  twelve  and  a  half  cents. 


CONVICTION.  81 

.  m;:  ;i  warrant  of  distress  for  rent,  one  dollar  and  fifty  cents  j 
making  an  inveniory  on  such  distress,  -md  draft  of  notice,  and  as 
many  copies  as  m.-iy  I'e  necessary,  one  dollar;  travelling  fees,  per 
mile,  six  cents;  fees  for  levying  and  selling,  for  each  dollar,  two 
cents,  or  levying  only,  for  each  dollar,  one  cent ;  provided  that  this 
shall  nut  extend  tu  the  city  of  A*e?/'- York. 

Mileage  for  every  mile,  going  only,  eight  cents. 

Levying  a  fine  or  penalty,  to  the  amount  of  two  dollars  and 
fifty  cents,  or  under,  twelve  and  a  half  cents,  and  on  all  sums 
above  two  dollars  and  fifty  cents,  at  the  rate  of  twelve  and  a 
half  cents  on  every  two  dollars  and  fifty  cents. 

Taking  a  defendant  into  custody  on  a  mittimus,  twelve  and  a 
half  cents. 

Conveying  a  person  to  gaol,  twelve  and  a  half  cents,  if  within 
one  mile,  and  for  every  mile  more,  going  only,  six  cents. 


CONVICTION. 

The  power  of  a  justice  of  the  peace  to  convict  an  offender  in  a  i  Burns' Just, 
summary  way,  without  a  trial  by  jury,  is  in  restraint  of  the  com-  604>  50i< 
mon  law,  and  nothing  shall  he  presumed  in  favour  of  this  branch 
of  the  office  of  a  justice  of  the  peace  ;  but  the  intendment  will  be 
against  it.  For  which  reason,  where  this  special  power  is  given 
to  a  justice  of  the  peace  by  statute,  it  must  appear  that  he  has 
strictly  pursued  it,  otherwise  the  common  law  will  break  in  upon 
him,  and  level  all  his  proceedings.  So  that  where  a  trial  by 
jury  is  dispensed  with,  he  must  nevertheless  proceed  according 
to  the  course  of  the  common  law  in  trials  by  jury,  and  consider 
himself  only  as  constituted  in  the  place  both  of  judge  and  jury. 
Therefore  there  must  be  an  information  or  charge  against  a 
person  ;  then  he  must  be  summoned,  or  have  notice  of  such 
charge,  and  have  an  opportunity  to  make  his  defence  ;  and  the 
evidence  against  him  must  be  such  as  the  common  law  approves 
of,  unless  the  statute  specially  direct  otherwise  ;  then  if  the  person 
be  found  guilty,  there  must  be  a  conviction,  judgment,  and  execu- 
tion, all  according  to  the  course  of  the  common  law,  directed 
and  influenced  by  the  special  authority  given  by  statute  ;  and  in 
the  conclusion,  there  must  be  a  record  of  the  whole  proceedings, 
\\hereinthe  justice  must  set  forth  the  particular  manner  and  cir- 
cumstances, so  that  if  he  should  be  called  to  account  for  the 
same  by  thn  supreme  court,  it  may  appear  that  he  has  conformed 
to  the  law,  and  not  exceeded  the  bounds  prescribed  to  his  juris- 
diction. 

A  conviction  (in  the  sense  in  which  it  is  here  used)  is  a  record 
of  the,  summary  proceedings  upon  any  penal  statute,  before  one 
or  more  justices  of  the  peace,  or  other  persons  duly  authorized, 
in  a  case  where  the  offender  has  been  convicted  and  sentenced. 

[   U   1 


;,J  CONVICTION. 

The  following  observations  on  the  form  of  a  record  nf  ronvu'tim.' 
are  principally  intended  for  those  cases  in  which  no  directions  art; 
.  by  the  statute,  authorizing  this  mode  of  proceeding,  in  the 
{/articular  instance. 

ust.        Where  the  conviction  proceeds  on  the  information  of  some  per- 

s  Mud.  309.      son,  and  not  on  the  justice's  own  knowledge,  that  information  should 

^lia^t,  195.      be  set  forth,  stating  the  day  when  it  was  taken,  that  it  may  appear 

to  have  been  given  within  the  time  limited  by  law;  the* place 

where  it  was  taken,  that  it  may  appear  that  the  justice  was  acting 

•within  the  limits  of  his  jurisdiction  ;  the  name  of  the  justice  or 

justices  to  whom  it  was  given  ;  and  if  directed  to  be  taken  on  oath, 

it  should  be  stated  to  be  so  taken. 

1  Ld.  Raym.        The  facts  by  which    the  information  is  supported  must  have 
5ii.  s  Mod.    arisen  before  the  information  was  given  ;  for  if  they  appear  to  bo 
'Is  s'lli^ssl    subsequent  to  the  information,  the  conviction  will  be  quashed. 
-.73.2Str.90o.   The  time  of  committing  the  offence  must  likewise  be  stated,  for 

the  same  reason  as  the  time  of  giving  the  information,  that  from 
the  day  of  the  offence,  and  the  day  of  commencing  the  prose- 
cution, it  may  appear  that  it  w^as  commenced  in  due  time,  and 
also,  that  the  party  may  be  enabled  to  defend  himself  against  a 
second  charge.  But  the  offence  need  not  be  proved  to  have  been 
committed  precisely  on  the  day  alleged  :  and  it  has  been  held, 
that  it  was  sufficient  to  state  that  it  was  done  between  such  and 
such  a  time. 

2  i.d.  Ksym.        The  information  must  state  the  place  where  the  offence  was 
mo.  i  I.R.   committee!,  that  it  may  appear  to  have  arisen  within  the  jurisdic- 
tion of  the  justice  :  and  it  must  be  proved  to  have  been  commit- 
ted in  the  place  laid  in  the  information,  for  wherever  the  jurisdic- 
tion of  the  magistrates,  who  try  the  offence,  is  local,  the   offence 
must  be  proved  to  have  been  committed  within  their  jurisdiction. 

i  Ld.  R.iym.        The  particular  manner  in   which  the  offence  was  committed 
SRI.  2  Ld.      1Tlust  be  set  forth  and  described  in  the  manner  directed  by  the 

Kaym.  13o3.  .... 

i  sw.  497.      act  creating  it  an  offence,  that  it  may  appear  to  come  within  its 

080.  •    • 

provisions. 

1AV  Whenever  a  statute  inflicts  a  penalty  for  an  offence  created  by 

Saund.  262.     it  upon  conviction  before  one  or  more  justices  of  the  peace,  (but 

497.* 2  Ld^       there  is  an  exception  in  the  enacting  clause  of  persons  under  par- 

Raym.  13B6.   ticular  circumstances,)  it  is  necessary  to  state,  in  the  information, 

that  the  defendant  is  not  within  any  of  the  exceptions.     And  it 

seems  immaterial,  whether  tiie  exception  be  in  the  same  section, 

1  stress'        or  a  preceding  section,  or  in  a  preceding  act,  referred  to  by  the 

2Str.  noi.     enacting  clause. 

3»f Tjohnil        But  where  the   exemption  is   contained   under  a  proviso,  it  is 
Rep.  306.        matter  of  defence,  and,  therefore,  it  is  not  necessary  to  state  in  the 
Saum!'.* '2*2.     conviction  that  the  defendant  is  not  within  such  proviso. 
i»-  i- i  Bums'        n  ;B  a  fundamental  rule,  that  the  party  should  be  summoned 
'/s'lik.  iVr.      before  ,hc  is  convicted.     But  the  defendant's  appearance  will,  in 
'Jo's,  "sn"'    t'1'is  rnr"':  ;ls  '"  other  cases  of  process,  cure  not  ouly  all  u< 
f.:c.  lEast,      ai;'j  ;  thf  summons,  but  also  the  want  of  a 


CONVICTION.  83 

if  the  party,  on  being   summoned,  do  not  appear,   proof  having 
made  on  oath  of  the  service  of  the  summons,  the  justice 
may  proceed  to  convict  him,  for  ho  will  not  be  allowed  by  his 
own  default  to  escape  the  penalty  of  the  law. 

The  information  should  be.  read  to  the  defendant,  and  he  should  2Term  Rep. 
!>e  put  to  plead  thereto,  that  is,  either  to  confess  or  deny  it,  before  22* 
the  justice  proceeds  to  hear  evidence  in  its  support. 

The  defendant's  confession  of  the  charge  before  the  justice  is 
the   strongest  evidence  of  the  offence.       For   though  a  statute  saunT.^i. 
should  direct  a  conviction  to  be  "  upon  the  oath  of  one  or  two  credi-  n- l- 
ble  witnesses,"  without  adding,  "  or  by  confession  of  the  offend- 
er," yet  conviction,  upon  his  confession  before  the  justice,  has 
been  held  sufficient ;  and,  what  is  still  stronger,  it  has  been  held, 
that  a  confession  made  to  others,  and  not  to  the  justice,  if  proved  i  Term  Rep. 
by  such  persons  to  his  satisfaction,  in  the  presence  of  the  defend- 
ant, will  be  sufficient  evidence  to  convict.     Where  the  defendant 
confesses  Ihe  charge,  it  seems  to  be  sufficient  only  to  state  in  the 
conviction  the  information,  the  defendant's  appearance,  the  con- 
fession, and  adjudication. 

But  a  confession  will  extend  no  further  than  to  the  facts  charg-   iBurr.  eon. 
ed  in  the  information  ;  therefore,  if  the  offence  be  not  brought  by 
the  information  within  the  act  upon  which  the  conviction  is  found- 
ed, the  defendant's  confession  will  not  make  the  conviction  good. 

The  informer,  where  he  receives  part  of  the  penalty,  cannot  be  i  Wms. 
a  witness.    For  Avhich  reason  it  is  requisite  to  name  the  witness  in  n^"!"^  Ld~. 
the  conviction,  that  it  may  appear  that  he  is  not  the  same  person  Raym.  1545. 
w  ifli  the  informer.  Andr.  18.240. 

It  is  essential  that  the  evidence  should  be  given  in  the  presence  2Bi;rr  1103. 
of  the  defendant,  that  he  may  have  an  opportunity  of  cross  ex-  n5"m 
amining   the  witnesses ;  and  it  must  appear,  on  the  face  of  the  2  Term  Rep< 
conviction,  that  the  evidence  was  so  given.     But  if  it  appear  on  '2  ^erm  R 
the  conviction  that  the  evidence  was  given  on  the  same  day  that  18- 
the  defendant  appeared  and  pleaded,  the  court  will  presume  that  i4s.enr 
it  was  given  in  his  presence. 

The  evidence  should  be  set  forth  particularly  in  the  conviction,  2  Burr.  nes. 
that  the  court  may  judge  whether  the  justice  has  convicted  on  2Dong.*48oV 
proper  evidence. 

The  conviction  should  state  not  merely  the  result  of  the  evi-  7  Term  Rep. 
dence,  but  the  whole  evidence  itself.  It  is  not  sufficient  that  the  Dig.  "'mticei 
witness  swear  generally  that  the  defendant  was  guilty  of  the  pre-  "r  |,lle  Peacc-« 
mises ;  particular  facts  must  be  proved  and  stated. 

The  magistrate  is  the  sole  judge  of  the  weight  of  the  evidence ;  s  Term  RPJ>. 
and  it  is  entirely  and  exclusively  for  his  consideration,  and  he  is  nil).  S'TJ."" 
placed  in  the  situation  of  a  Jury,  and  the  court  before  whom  the 
conviction  is  brought,  on  appeal,  will  not  substitute  themselves  in 
Ihe  place  of  the  justices  acting  as  jurymen  ;  they  cannot  judge  of 
the  credit  due  to  witnesses  whom  they  did  not  hear  examined, 
and  can  only  look  to  the  form  of  the  conviction,  and  see  that.  thr» 
ty,  if  convicted,  has  been  convicted  by  I^jral 


84 

1 1 !  urn's  Ju«t. 
5i3,  524. 

1  East,  189. 


3  Burr.  1730. 
2  Term  Rep. 
285. 


Goss  v.  Jack- 
ion.  3  Esp. 
i98. 


1  Term  Rep. 

520. 

8  Ld.  Raytn. 

1376. 


Rex  v. Listen, 
2  Kast,  195. 


7  East,  W6. 


CORONERS. 

There  must  be  a  judgment  in  the  conviction,  stating  not  only 
that  the  defendant  was  guilty,  but  likewise  adjudging  the  fine,  or 
forfeiture  to  which  the  party  is  subjected.  So  where  an  act 
power  to  a  magistrate,  on  a  summary  conviction,  to  award  the 
reasonable  charges  of  taking  a  distress,  he  must  ascertain  the. 
amount  in  the  conviction,  and  an  adjudication  that  the  defendant 
shall  pay  the  reasonable  charges  of  the  levy,  is  bad. 

The.  justice  ought  to  give  the  defendant  a  copy  of  the  convic- 
tion, if  he  demand  it;  and  the  justice  ought,  in  every  instance,  to 
return  the  conviction  to  the  sessions,  whether  the  defendant  ap- 
peals or  not,  or  whether  an  appeal  is  or  is  not  given. 

The  form  of  conviction  given  by  statute  must  be  strictly  adhered 
to.  "Where  a  conviction  was  drawn  up  in  another  form,  and  a 
•warrant  granted  on  it,  it  was  held  illegal,  and  that  an  action  of 
trespass  lay  against  the  justice,  and  those  acting  under  it. 

The  judgment  should  be  stated  in  the  present  tense  ;  but  the. 
previous  parts  of  the  record  of  conviction  may  6e  in  the 
time;  although   it  has  been   held   that  the  whole  of  the  record 
should  be  in  the  present  tense,  which  is,  perhaps,  the  safest  rule 
to  pursue. 

If  the  convicting  magistrate  give  a  proper  date  to  the  time  of  the 
conviction  upon  the  face  of  it,  and  afterwards  add  an  impossible 
date  to  the  time  when  he  set  his  hand  and  seal  to  the  conviction, 
(being  before  the  offence  committed,)  the  latter  may  be  rt  ;• 
as  surplusage.  It  is  enough  that  the  conviction  sets  forth  that  the 
witness  was  examined  on  oath,  without  stating  that  the  magis- 
trate had  authority  to  administer  the  oath.  Where  a  penalty  is 
to  be  sued  for  before  justices  of  the  peace,  within  a  certain  time 
after  the  offence  committed,  upon  a  conviction  for  such  offence, 
it  ought  to  appear  on  the  face  of  the  evidence  stated  in  such  con- 
viction, that  the  prosecution  was  in  time ;  and  if  the  witness  be 
only  stated  to  have  mentioned  the  month  in  which  the  offence 
was  committed,  omitting  the  year,  and  there  be  no  word  of  refer- 
ence to  connect  it  with  the  true  date,  the  omission  cannot  be  sup- 
plied, either  by  reference  to  the  offence  charged  in  the  informa- 
tion, or  by  presumption  arising  from  the  justice  having  convicted 
the  defendant. 


CORONERS. 

"  In  every  county  of  this  state,  competent  men  shall  be  appoint- 
ed as  coroners,  and  it  shall  be  the  duty  of  every  coroner  to  go  to 
the  places  where  any  persons  be  slain,  or  suddenly  dead,  or  w  ound- 
cd,  or  where  houses  are  broken  open,  or  treasure  is  said  to  be 
found,  and  forthwith  to  command  twenty-four  good  and  lawful 
men  of  his  county  to  appear  before  him,  at  such  places  therein 
as  he  shall  appoint,  and  upon  their  oaths,  or  the  oaths  of  any 


DEAD  BODIES.  85 

twelve  or  more  of  them,  and  upon  view  of  the  body  of  any  jn:r- 

tin,  or  suddenly  dead,  and  the  proof  of  witnesses,  to  inquire 

how.  and  in  what  manner,  and  when,  and  where,  such  person  was 

slain  or  died,  and  who  such  person  WDS,  and  of  all  the  circumstan- 

.  and  who  were  guilty  thereof,  cither  ;• .; 

principal  or  accessory,  and  in  what  manner  ;  and  to  take  and  com- 
mit every  one  so  found  guilty,  and  also  any  one  suspected  of  the 
_  of  any  person,  or  of  doing  hurt  to  any  person,  so  as  to  en- 
;•  life,  to  the  gaol  of  such  county;  arid  to  make  the  like  in- 
quiry of  persons  who  shall  die  in  prison,  or  he  killed  of  misfortune; 
and  also  of  treasure  found,  and  who  were  the  finders,  or  suspected 
thereof,  and  to  attach  such  finders,  and  hind  them,  with  at  least 
two  suilicient  sureties,  to  appear  before  the  next  justices  of  oyer 
and  tenniner  and  gaol  delivery  in  such  county,  to  answer  the  pre- 
mises ;  all  which  matters  shall  be  enrolled  by  the  coroners,  and 
all  coroners  shall  deliver  their  inquisitions  and  rolls  to  such  jus- 
tices in  the  respective  counties,  who  shall  proceed  thereon  against 
the  offenders,  if  they  be  in  gaol,  and  if  not,  such  justices  shall 
deliver  the  same  into  the  supreme  court,  there  to  be  proceeded 
upon  according  to  law.  Sess.  '24.  c.  43.  s.  1.  1  11.  L.  150. 

coroner,  upon  any  inquisition  found  before  him,  where- 
by any  person  shall  be  indicted  of  murder  or  manslaughter,  or  as 
accessory  thereto  before  the  fact,  shall  put  in  writing  the  effect  of 
the  evidence  given  to  the  jury  before  him,  and  bind  the  witnesses 
to  appear  and  testify  against  such  person,  at  the  next  court  of 
oyer  and  tcr;nin-;r  and  gaol  delivery,  to  be  holden  in  the  same 
'county,  and  S':HI|  certify  the  recognisances  taken  by  him  for  that 
purpose,  together  with  the  said  inquisition  and  evidence,  to  such 
court ;  and  in  case  any  coroner  shall  neglect  to  perform  any  duty 
required  of  him  by  this  act,  and  be  thereof  convicted  before  any 
justices  of  oyer  and  tenniner  and  gaol  delivery  in  such  county, 
he  shall  he  fined,  at  the  discretion  of  such  justices."  s.  '2. 

Every  coroner  is  a  principal  conservator  of  the  peace  within  his  2  Hawk. c.  s. 
county,  and   may   certainly  bind  any  person  to  the  peace  who  s<5> 
makes  an  affray  in  his  presence  ;  but  it  seems  the  better  opinion, 
that  he  has  no  authority  to  grant  process  for  the   peace  ;  and  it 
seems  clear,  that  the  security  taken  by  him  for  the  keeping  of  the 
peace,  (except  only  where  it  is  taken  by  him  as  judge  of  his  own 
court,  for  an  affray  done  in  such  court,)  is  not  to  be  looked  on  as 
a  recognisance,  but  as  an  obligation. 


DEAD  BODIES. 

"  If  any  person  shall,  with  intent  to  dissect,  dig  up  or  remove, 
or  be  aiding   or  assisting  in  digging  up  or  removing  any  dead  hu- 
man body,  which  shall  have  been  interred  in  any  cemetery  or  bu- 
'••ce  within  this  state,  or  shall  dissect,  or  aid,  abet,  or  assist  in 


DEBTORS. 

:cting  such  human  body,  every  such  person  shall  be  deemed 
guilty  of  a  public  offence,  and  being  thereof  convicted  in  the  su- 
preme court,  or  in  any  court  of  oyer  and  terminer  and  g;iol  de- 
livery, or  general  sessions  of  the  peace,  shall  suffer  such  punish- 
ment, by  fine  or  imprisonment,  or  both,  as  the  court  before  «  horn 
such  conviction  shall  be  had  shall  in  their  discretion  think  pro- 
per." Sess.  24.  c.  J24-.  s.  1.  1  R.  L.  175. 


DEBTORS. 

The  trustees  of  the  estate  of  an  absent  or  absconding  debtor, 
or  their  survivors,  "  may  apply  to  any  justice  of  the  peace,  who  in 
such  case  is  required  to  grant  a  warrant,  commanding  the  said  ab- 
sconding or  concealed  debtor,  his  wife,  and  every  other  person 
known  or  suspected  to  detain  any  part  of  his  estate,  or  to  be  in- 
debted to  it,  or  to  know  any  thing  concerning  the  concealment  or 
embezzlement  thereof,  to  be  brought  before  him,  at  such  place  as 
he  and  the  trustees  shall  appoint,  where  the  said  justice,  or  in  his 
absence  any  other  justice  to  be  requested  by  the  said  trustees, 
shall  be  present,  at  which  meeting  either  the  said  justice  or  the 
said  trustees,  or  both,  may  examine  on  oath,  to  be  administered  by 
the  justice,  ever}'  person  so  brought  before  them  on  the  said  war- 
rant, touching  all  matters  relative  to  the  said  debtor,  his  dealings, 
and  his  estate,  and  reduce  the  examination  to  writing,  which  the 
said  person  is  hereby  required  to  sign  ;  and  if  the  said  person  shall 
refuse  to  be  sworn  or  to  answer,  or  shall  not  answer  to  the  satisfac- 
tion of  the  said  justice,  all  lawful  questions  to  be  put  by  the  said 
justice  and  trustees,  or  the  major  part  of  them  present,  as  well  by 
word  of  mouth  as  by  interrogatories  in  writing,  or  shall  refuse  to 
Hgn  the  examination,  not  having  any  reasonable  objection,  either 
to  the  wording  thereof,  or  otherwise,  to  be  allowed  by  the  said 
justice,  the  said  justice  shall  then,  by  warrant,  commit  such  person 
to  prison,  there  to  remain,  without  bail,  until  he  shall  submit  to  do 
what  shall  be  required  of  him  as  aforesaid  :  Provided  ahcays,  that 
the  said  warrant  of  commitment  shall  specify  the  particular  de- 
fault of  such  person,  and  if  it  be  in  not  answering  any  question, 
such  question  shall  be  specified  in  the  warrant."  Sess.  24.  c.  49. 
s.  12.  1  R.  L.  160. 

"  If  any  person,  so  to  be  examined,  shall  wilfully  and  knowingly 
swear  or  affirm  falsely,  he  shall  be  liable  to  the  pains  and  penalties 
of  wilful  and  corrupt  perjury."  s.  1 3. 

"  Every  person,  not  being  a  freeholder,  who  sh?ll  be  confined  in 
gaol  upon  any  execution  or  other  process,  or  by  virtue  of  any 
judgment  or  order  of  any  court  of  justice,  or  by  warrant  from  any 
judge  or  justice  for  any  debt  or  sum  of  money,  fine,  or  forfeiture, 
not  exceeding  twenty-five  dollars,  exclusive  of  costs,  and  shall 
have  remained  in  gaol  for  thirty  days,  if  not  detained  for  any 


DEER. 

ether  caus.e,  shall  be  discharged  from  such  imprisonment  by  the 
keeper  of  the  gaol,  on  application  to  him.  by  the  person  so  con- 
fined." Sess.  36.  c.  81.  s.  1.  1  R.  L.  34-8. 

"jNothing  herein  contained  shall  extend  to  cases  of  imprisonment 
under  the  act,  entitled,  Jin  act  for  the  speedy  recovery  of  debts  to  the. 
value  of  tiventy-ftve  dollars."  Ibid. 


DEER. 

"  If  any  person  or  persons  shall  kill  or  destroy  any  wild  buck, 
doe,  or  fawn,  or  any  other  sort  of  deer  whatsoever,  at  any  time  in 
the  months  of  January,  February,  March,  April,  May,  June,  or 
July,  every  such  person  shall,  for  every  buck,  doe,  or  fawn,  or 
other  deer,  so  killed  or  destroyed  as  aforesaid,  contrary  to  the 
true  intent  and  meaning  of  this  act,  forfeit  and  pay  the  sum  of 
twelve  dollars  and  fifty  cents,  to  be  recovered,  with  costs  of  suit, 
in  any  court  having  cognisance  thereof,  by  any  person  or  per- 
sons who  will  sue  and  prosecute  for  the  same ;  the  one  moiety  of 
which  foifeiture,  when  recovered,  to  be  paid  to  the  overseers  of  the 
poor  of  the  town  or  place  where  the  offence  shall  be  committed, 
for  the  use  of  the  poor  thereof ;  and  the  other  moiety  to  such  person 
or  persons  as  shall  sue  and  prosecute  for  the  same,  as  aforesaid." 
Sess.  36.  c.  1 1 .  s.  1 .  2  R.  L.  233. 

"  Every  person  in  whose  custody  shall  be  found,  or  who  shall 
expose  to  sale,  any  green  deer  skin,  fresh  venison,  or  deer's  flesh, 
at  any  time  in  any  of  the  months  before  mentioned,  and  shall  bo 
thereof  convicted  before  any  justice  of  the  peace,  by  the  oath 
of  one  credible  witness,  or  by  the  confession  of  the  part)',  shall, 
unless  such  party  shall  prove  that  some  other  person  killed  such 
buck,  doe,  fawn,  or  other  deer,  be  deemed  and  adjudged  guilty  of 
the  said  offence."  s.  2. 

And  in  order  the  more  easily  to  convict  offenders  against  this 
act,  it  is  enacted,  "  That  it  shall  be  lawful  for  any  justice  of  the 
peace,  in  any  county  of  this  state,  and  every  such  justice  is  here- 
by required,  upon  demand  made  by  any  person,  assigning  a  rea- 
sonable cause  of  suspicion,  upon  oath,  of  the  sufficiency  of  whicli 
the  said  justice  is  to  judge,  at  any  time  in  any  of  the  months 
before  mentioned,  to  issue  his  warrant  under  his  hand  and  seal,  to 
any  constable  of  any  town  or  place  within  the  same  county,  for 
searching  in  the  day  time  in  any  house,  store,  out-house,  or  other 
place  whatsoever,  where  any  green  deer  skin,  fresh  venison,  or 
deer's  flesh,  is  suspected  to  be  concealed;  and  in  case  any  green 
(ieer  skin,  fresh  venison,  or  deer's  flesh,  shall,  upon  such  search, 
be  found,  the  person  in  whose  custody  the  same  shall  be  found, 
or  wiio  concealed  the  same,  shall  forfeit  the  sum  of  twelve  dol- 
lars and  fifty  cents,  to  be  recovered  and  applied  • 
said."  3.  3. 


38 

- -:n  or  persons  shall  at  any  lime  L  f,  or 

ties'.  Id  buck,  doe,  or  fawn,  or  other  deer,  with  an\ 

hound,  or  bluod  hounds,  beagle,  or  b* 

shall,  for  every  such  offence,   forfeit  and  pay  the  sum  of  twelve 
.rs  and  fiftv  cents,  to  be  recovered  and  applied  as  afon 
t  is  provided,  "  that  nothing  in  this  clause  of  this  act 

.ill  be  construed  to  prevent  any  person  or  persons  from 
making  use  of  any  blood  hounds  or  beanies,  in  the  hunting,  pur- 
suing, or  destroying  of  v  -  other  destructive  wild  ani- 
mals.'' s.  +. 

••  If  any  person  or  persons  shall  set  any  trap  or  traps,  or  set  up 
any  sharp  stick  or  sticks,  or  spear  or  spears,  made  of  iron,  out  of 
or  in  any  pit  or  pits,  for  the  purpose  of  catching  deer,  or  shall  in 
the  night  time  watch  for  the  purpose  of  shooting  deer,  within  the 
space  or  distance  of  thirty  rods  from  any  road  or  hig' 
person  or  persons  shail,  for  every  such  olTence,  forfeit  the  sum  of 
twenty-live  dollars,  to  l>e  recovered  and  applied  in  manner  afore- 


DISEA^ 

The  greater  part  of  the  act  to  proridt  at~ 
niial  dista3(s   relates  to  the  city  o  >\  specially 

appoints  and  empowers  certain  officers  to  attend  to  the  ; 
of  it,   it  will  be  unm  •  insert  it  here  ;  the  two  following 

ins  are,  however,  applicable  to  any  part  of  the  state. 
•  A:i  vc  — fr;s  having  on  board  any  person  infected  with  any  rna- 
t  or  pestilential    fever,  or  coming   from  any  phce  w! 
Infected  therewith,  shall  not  come  into  any  other  of  the 
or  harbours  of  this  state  uniil  they  shall   have  performed 
quarantine,  for  such  time,  and  in  such  manner  as  the   person? 

i  after  mentioned  shall  think  proper  to  direct,  to  wit  : 
the  cities  of  .Albany  and  Hvdson,  and  upon  II  •  er.  oppo- 

'••  the  said  cities,  and  within  one   mile  above   or  below  the 
.  the  person  administering  the  government  of  this  state,  and 
in  his  absence  from  the  said  cities  respectively,  the  mayor,  and  in 
his  absence  the  recorder  of  the  said  cities  respec 

!i  this  state,  bordering  or  lyins:  upon  sny  part  or  har- 

•e.and  upon  the  waters  opposite  to  the  same  t 
••  more  justices  of  the  peace  ;nd  if 

any  j  •  ct  to  quarantine  as  a  for  violate  r~ 

meeting  the  same  a? 
v  of  a  misdemeanour,  and  shall  be 
fined  .ereof.  in  a  sr. 

c.  57.  s.    _ 


DISORDERLY  PERSONS. 

•  Ft  shall  he  lawful  for  the  said  persons  hereby  authorized,  to 
execute  this  act  in  the  said  cities  of  dlbmiy  and  Hudson,  and  for 
any  two  <>r  more  justices  of  the  peace  in  any  town  in  this  state, 
r.i  take  effectual  measures  to  prevent  the  introduction  and  spread- 
any  infectious  distemper  into  any  part  of  this  state,  and  for 
(hat  purpose  to  stop,  detain,  and  examine,  any  person  coining 
from  any  place  infected  with  any  such  malignant  or  pestilential 
fever,  and  if  there  shall  he  good  cause  to  suspect  any  person  to 
be  infected  therewith,  it  shall  be  lawful  for  the  several  persons 
aforesaid,  to  cause  every  such  person,  not  being  an  inhabitant 
thereof,  to  be  sent  out  of  this  state,  or  kept  in  such  place  as  will 
not  expose  the  inhabitants  of  the  same  to  take  such  distemper. 
And  further,  to  appoint  and  authorize  such  and  so  many  persons  to 
aid  in  the  execution  of  their  powers  aforesaid,  as  they  shall  re- 
spectively deem  proper."  s.  33. 


DISORDERLY  PERSONS. 

The  following  persons  are  to  be  deemed  disorderly  persons. 
'''  All  persons  who  threaten  to  run  away  and  leave  their  wives  or 
children  to  the  city  or  town,  and  all  persons  who  shall  unlawfully 
return  to  the  city  or  town  from  whence  they  shall  respectively 
have  been  legally  removed  by  order  of  two  justices  of  the  peace, 
without  bringing  a  certificate  from  the  city  or  town  whereto  they 
respectively  belong  ;  and  also  all  persons,  who  not  having  where- 
with to  maintain  themselves,  live  idle  without  employment,  and 
also  all  persons  who  go  about  from  door  to  door,  or  place  them- 
selves in  the  streets,  highways,  or  passages,  to  beg  in  the  cities  or 
towns  where  they  respectively  dwell,  and  all  jugglers,  and  all  per- 
sons pretending  to  have  skill  in  physiognomy,  palmistry,  or  like 
crafty  science,  or  pretending  to  tell  fortunes,  or  to  discover  where 
lost  goods  may  be  found ;  and  all  persons  who  run  away  and 
leave  their  wives  or  children,  whereby  they  respectively  become 
chargeable  to  any  city  or  town  ;  and  all  persons  wandering  abroad, 
and  lodging  in  taverns,  beer-houses,  out-houses,  market  places, 
or  barns,  or  in  the  open  air,  and  not  giving  a  good  account  of 
themselves  ;  and  all  persons  wandering  abroad  and  begging,  and  all 
idle  persons  not  having  visible  means  of  livelihood,  and  all  com- 
mon prostitutes,  shall  be  deemed  and  adjudged  disorderly  per- 
sons ;  and  it  shall  and  may  be  lawful  for  any  justice  of  the  peace 
to  commit  such  disorderly  persons,  (being  thereof  convicted  he- 
fare  him,  by  his  own  view,  or  by  the  confession  of  such  offenders, 
respectively,  or  by  the  oath  of  one  or  more  credible  witness  or 
witnesses,)  to  the  bridewell  or  house  of  correction  of  such  city  or 
town,  there  to  be  kept  at  hard  labour  for  any  time  not  exceeding 
sixty  days,  cr  until  tbe  next  general  sessions  of  fhe  peace,  to  be 


DISORDERLY   PERSONS. 

holtlen  in  and  for  the  city  or  county  in  which  such  offence  shall 
Lappen."  Sess  1 1 .  c.  3  I .  s.  1 .  1  R.  L.  114. 

Where  any  offender  shall  be  committed  as  aforesaid,  until  the 
next  general  sessions,  and  the  justices  at  such  sessions  shall  adjudge 
him  to  be  a  disorderly  person,  they  may,  if  they  think  convenient, 
order  him  to  be  kept  in  the  bridewell,  or  house  of  correction,  to 
hard  labour,  for  any  further  time,  not  exceeding  six  months  ;  and 
during  that  time  to  be  whipped  in  such  manner  and  at  such  times 
and  places  as  they  shall  think  fit.  s.  3. 

If,  where  offenders  have  been  committed  until  the  next  sessions, 
their  last  legal  place  of  settlement  cannot  be  found,  the  sessions 
may  order  them  to  be  detained  and  employed  in  the  bridewell, 
or  house  of  correction,  until  they  can  provide  for  themselves,  or 
Until  the  justices,  at  their  next  general  sessions  of  the  peace,  can. 
place  them  out  as  servants,  apprentices,  mariners,  or  otherwise  ; 
which  this  act  empowers  them  to  do,  in  such  manner  as  they  shall 
think  fit.  s.  4. 

"  Whereas,  it  often  happens  that  disorderly  persens  wander  from 
the  places  of  their  legal  settlement,  and  are  in  circumstances 
sufficient  to  pay  for  thejr  passage  or  journey  home  ;"  it  is  there- 
fore enacted,  "  that  it  shall  be  lawful  for  any  justice  or  justices  of 
the  peace,  before  whom  any  such  disorderly  person  shall  be 
brought,  to  order  such  disorderly  person  to  be  searched,  and  his 
or  her  bundle  to  be  inspected  by  a  constable,  or  overseer  of  the 
poor  of  such  city  or  town,  in  the  presence  of  such  justice  ;  and 
if  it  shall  appear  that  any  such  disorderly  person  hath  sufficient 
wherewithall  to  pay  his  or  her  passage  or  journey,  either  in  the 
whole  or  in  part,  to  the  city  or  town  to  which  he  or  she  shall  be- 
long;, then  the  said  justice  or  justices  shall  order  so  much  of  the 
money,  eo  found,  to  be  paid,  or  other  effects  found  with  and  upon 
such  disorderly  person,  to  be  sold  and  employed  for  and  towards 
the  expense  of  taking  up  and  passing  such  disorderly  person  to  his 
or  her  last  legal  place  of  settlement ;  returning  the  overplus,  if  any 
there  be,  after  deducting  the  charges  of  such  sale,  to  such  disor- 
derly person."  s.  7. 

"  Whereas,  there  are  sometimes  persons,  who  by  lunacy,  or 
otherwise,  are  furiously  mad,  or  are  so  far  disordered  in  their 
senses  that  they  maybe  dangerous  to  be  permitted  to  go  abroad ;'' 
it  is  therefore  enacted,  "  that  it  shall  and  may  be  lawful  for  any 
fwoormore  justices  of  the  peaee,  where  such  lunatic  or  mad 
person  shall  be  found,  by  warrant  under  their  hands  and  seals, 
directed  to  the  constables  and  overseers  of  the  poor  of  the  city 
or  town,  or  some  of  them,  to  cause  such  person  to  be  appre- 
hended and  kept  safely  locked  up  in  some  secure  place  withiu 
such  city,  or  within  the  county  in  w  liich  such  towu  shall  lie,  as 
such  justices  shall,  under  their  hands  and  seals,  direct  and  appoint; 
and  if  such  justices  shall  find  it  necessary,  to  be  there  chained,  it 
the  last  legal  place  of  settlement  shall  be  in  such  city,  or  in 
any  town  within  such  county  ;  and  if  the  last  legal  place  of 
settlement  of  suqh  person  shall  not  be  in  such  city  or  county, 


DISTRESS. 

then  su*h  person  shall  be  sent  to  the  place  of  his  er  her  last  set- 
tlement, in  the  manner  directed  in  and  by  the  laws  relating  to  the 
poor,  and  shall  be  locked  up  or  chained,  by  warrant  from  two  jus- 
tines  of  tne  city  or  county  to  -which  such  person  shall  be  so  sent  in 
manner  aforesaid;  and  ttie  reasonable  charges  of  apprehending, 
maintaining,  keeping  and  removing  such  person,  shall  be  satisfied 
and  paid  by  the  overseers  of  the  poor  of  the  city  or  town  in  which 
such  person  shall  be  legally  settled  as  aforesaid,  in  the  manner 
in  and  by  the  said  laws  directed.  Provided  always,  that  this 
act,  or  any  thing  therein  contained,  shall  not  extend  or  be  con- 
strued to  extend  to  or  abridge  the  power  or  authority  of  the 
chancellor  of  this  state,  for  the  time  being,  touching  or  con- 
cerning such  lunatics  ;  or  to  restrain  or  prevent  any  friend  or 
relation  of  such  lunatic  from  taking  them  under  their  own  care 
and  protection."  s.  6. 

In  counties  in  which  there  is  no  bridewell  or  house  of  correc- 
tion, the  gaol  shall  be  used  for  the  purposes  of  this  act.     s.  4. 


DISTRESS. 

A  distress  is  the  taking  of  a  personal  chattel  out  of  the  pos-  sBl.Cam.4 
session  of  the  wrong  doer  into  the  custody  of  the  party  injured, 
to  procure  a  satisfaction  for  the  wrong  committed.  The  only 
cases  in  which  a  distress  is  allowed  by  law  are,  ] .  For  arrear- 
ages of  rent.  2.  For  beasts  trespassing  on  the  lands  of  another, 
or  as  it  is  generally  expressed,  damage  feasant ;  and,  3.  For  fines 
and  assessments  under  particular  statutes. 

I.   Of  distress  for  rent. 
II.  Distress  damage  feasant. 
III.   Of  distress  by  warrant  of  justices  of  the  pcctft-. 

I.   Of  distress  for  rent. 

Where  the  lessee  shall  carry  off"  from  the  demised  premises 
his  goods  or  chattels,  leaving  the  rent  unpaid,  the  landlord  or  his 
bailiff  may,  within  thirty  days  next  after  such  carrying  off,  seize 
such  goods  or  chattels  wherever  they  may  be  found,  and  sell 
them  for  the  arrears.  Provided  the  said  goods  shall  not  have  been 
sold  lona  fide,  and  for  a  valuable  consideration,  before  such 
seizure  made,  to  any  person  not  privy  to  such  fraud.  Sess.  36. 
c.  63.  s.  13.  1  R.  L.  437. 

"  Where  any  goods  or  chattels  shall  be  conveyed  or  carried 
away  as  aforesaid,  by  any  tenant  or  lessee,  or  bis  servant,  agent,  or 
other  person  aiding  or  assisting  therein,  and  shall  be  put,  placed, 
or  kept  in  any  house,  barn,  stable,  out-house,  yard,  close,  or 
place,  locked  up,  fastened,  or  otherwise  secured,  so  as  to  pre- 


92  DISTRESS. 

vent  such  goods  or  chattels  from  being  taken  and  seized  as  a 
distress  for  arrears  of  rent,  it  shall  and  may  he  lawful  for  the 
landlord  or  lessor,  or  his  heirs  or  assigns,  or  his  steward,  bailiff, 
receiver,  or  other  person  empowered,  to  take  and  seize,  as  a  dis- 
tress for  rent,  such  good,  and  chattels,  first  calling  to  his  assist- 
ance the  constable  or  other  peace  officer  of  the  town  or  place 
where  the  same  shall  be  suspected  to  be  concealed,  who  are 
hereby  required  to  aid  and  assist  therein  ;  and  in  case  of  a  dwell- 
ing house,  oath  being  also  first  made  before  some  justice  of  the 
peace,  of  a  reasonable  ground  to  suspect  that  such  goods  or  chat- 
tels are  therein,  in  the  day  time  to  break  open  and  enter  into 
such  house,  barn,  stable,  out-house,  yard,  close,  or  place,  and  to 
take  and  seize  such  goods  and  chattels  for  the  said  arrears  of  rent, 
as  he  might  have  done  by  virtue  of  this  act,  if  such  goods  and 
chattels  had  been  put  in  any  open  field  or  place."  s.  15. 

"  Where  any  goods  or  chattels  shall  be  distrained  for  any  rent 
reserved  and  due  upon  any  demise,  lease,  or  contract  whatsoever, 
and  the  tenant  or  owner  of  the  goods  so  distrained  shall  not, 
within  five  days  next  after  such  distress  taken,  and  notice  thereof 
(with  the  cause,  of  taking)  left  at  the  chief  mansion  house,  or  other 
most  notorious  place  on  the  premises,  charged  with  the  rent  dis- 
trained for,  replevy  the  same,  with  sufficient  security  to  be  givea 
to  the  sheriff  according  to  law  ;  that  then,  in  such  case,  after  such 
distress  and  notice  as  aforesaid,  and  expiration  of  the  said  five 
days,  the  person  distraining  shall  and  may,  with  the  sheriff  or 
under  sheriff  of  the  county,  or  with  the  constable,  or  other  officer 
of  the  town  or  place  where  such  distress  shall  be  taken  (who  are 
hereby  required  to  be  aiding  and  assisting  therein)  cause  the 
goods  and  chattels  so  distrained  to  be  appraised  by  two  sworn 
appraisers,  whom  such  sheriff,  under-sheriiT,  constable,  or  other 
officer  as  aforesaid,  are  hereby  empowered  to  summon  for  that 
service,  and  to  swear  well  and  truly  to  appraise  the  same  ac- 
cording to  the  best  of  their  understanding,  and  after  such  ap- 
praisement, shall  and  may  lawfully  sell  at  public  vendue  the 
goods  and  chattels  so  distrained,  for  the.  best  price  that  can  be 
gotten  for  the  same,  (giving  three  days  public  notice)  towards 
satisfaction  of  the  rent  for  which  the  said  goods  and  chattels  shall 
be  distrained,  and  of  the  charges  of  such  distress,  appraise- 
ment and  sale  ;  leaving  the  overplus  (if  any)  in  the  hands  of  the 
said  sheriff,  under  sheriff,  constable,  or  officer,  for  the  owner's 
use."  s.  5. 

\H.  BI.IS.  The  five  days  allowed  before  the  sale  of  a  distress  are  inclu- 
sive of  the  day  of  sale,  so  that  the  three  days  previous  public 
notice  of  sale  must  expire  the  same  day  that  the  distress  is  sold. 

All  dis-resses  made  or  taken  for  any  rause  whatsoever,  shall 
be  resiso--  iMe,  and  not  too  great:  and  whosoever  shali  take  j:rr;it 
and  unre  onable  distresses,  shali  be  purished  by  fine  for  the  ex- 
cess of  such  distresses,  and  shall  answer  in  damages  to  the  party 
grieved,  s.  1. 


DISTRESS.  93 

•'  .Vo  person  shall  take  any  distress  wrongfully,  or  distrain  in  the 
highway  or  common  street,  or  cau.se  any  distress  that  he  shall 
take  to  be  driven  out  of  the  county  where  it  shall  be  taken  ;  and 
every  person  who  shall  so  do,  of  his  own  authority,  and  without 
judgment,  shall  be  punished  by  fine,  as  for  a  thing  done  against 
the  pt;ace,  and  shall  answer  to  the  party  aggrieved."  s.  2. 

"No  person  shall  be  distrained  for  any  cause  whatsoever,  by  his 
beast  of  the  plough,  or  sheep,  or  by  the  implements  of  his  trade, 
until  other  distress  or  chattels,  whereof  the  debt  may  he  levied. 
or  sufficient  for  the  demand,  cannot  be  found,  (except  the  distrain- 
ing and  impounding  beasts  found  on  the  ground  of  any  person  da- 
mage feasant,)  according  to  the  custom  of  this  state."  s.  3. 

"  When  any  beasts  are  distrained,  for  any  cause  whatsoever, 
they  shall  be  put  in  open  pound,  in  the  same  county  where  they 
shall  be  taken  ;  and  they  to  whom  the  beasts  do  belong  may  give 
them  their  feeding,  without  disturbance,  so  long  as  they  shall  be 
impounded."  s.  4. 

II.  Distress  damage  feasant. 

<' When  any  distress  shall  be  made  of  any  beasts  doing  damage, 
the  person  distraining  shall,  as  soon  as  conveniently  may  be,  and 
within  twenty-four  hours  thereafter,  ualess  the  distress  be  made 
on  Saturday,  in  which  case  he  shall,  before  Tuesday  morning 
thereafter,  make  application  to  the  two  nearest  fence-viewers  in 
the  same  town,  to  appraise  and  ascertain  the  damage,  who  shall 
immediately  thereupon  go  to  the  place  where  such  damage  shall 
be  committed,  and  view  the  damage  done,  and  appraise,  ascertain, 
and  certify,  under  their  hands,  the  amount  thereof,  with  their  fees 
for  the  same  ;  and  if  any  dispute  shall  arise  concerning  the  suffi- 
ciency of  the  fence,  it  shall  be  determined  by  the  same  fence- 
viewers,  whose  decision  shall  be  conclusive,  and  the  person  mak- 
ing the  distress  shall,  as  soon  as  he  shall  think  proper,  and  within 
forty-eight  hours  after  making  such  distress,  unless  the  damage 
shall  be  sooner  paid,  cause  the  beasts,  so  distrained,  to  be  put  in 
the  nearest  pound  in  the  same  county,  where  they  shall  remain 
until  the  sum  so  certified  by  the  fence-viewers,  with  the  fees  of 
the  pound-master,  shall  be  paid,  or  the  beasts  so  impounded  be 
replevied."  Sess.  36.  c.  35.  s.  19.  2  R.  L.  134-. 

Beasts  taken  damage  feasant  cannot  be  impounded  until  the  Pratt  v.  Pe- 
damage  has  been  ascertained  and  appraised  by  two  fence-viewers,  j^l.  m° 1IJS 
and  if  the  party  distraining;  do  not  pursue  the  directions  of  the  act,  SacknUer  v. 

*         J  * .     .   .  M'Donald,  10 

ne  renders  hunselt  a  trespasser  ab  initio.  Johns.  R.-n, 

263. 

III.   Of  distress  by  icarrant  of  justices  of  the  peace. 

The  act  concerning  distresses,  &c.  sess.   36.  c.   63,  does  not  i  Burr.  JTS. 
extend  to   those  cases  in  which  a  distress  is  made  for  a  tax,  as-   ^  ns 
sessment  or  fine,  because,  although  called  a  distress,  it  is  in  reality 


94 

an  execution  ;  and  therefore  it  is,  in  such,  lawful  to  levy  en  '> 
of  the  plough,  !s:c.  although  there  may  be  other  poods  sufficient, 
o Mod. 83.  Where  power  is  given  to   levy  a  penally    by   distress  by   any 

act,  without  specifying  that  the  distress  may  be  sold,  a  power  to 
^ell  is,  notwithstanding,  necessarily  implied. 

"  Xo  replevin  shall  lie  in  any  case  of  distress  for  any  tax,  as- 
sessment, or  fine,  to  be  collected  or  levied  i  -.  pursuance  of  any 
law  of  this  state  ;  and  if  any  person  or  persons  shall  hereafter 
sue  out  or  prosecute  a  replevin  in  any  such  case,  he,  she,  or  they 
shall  forfeit  the  sum  of  fifty  pounds,  to  be  recovered,  with  costs 
of  suit,  in  any  court  of  record  within  this  state,  by  action  of 
debt,  bill,  plaint,  or  information  ;  the  one  moiety  to  any  person 
who  shall  sue  for  the  same,  and  the  other  moiety  to  the  people  of 
this  state."  Sjess.  11.  o.  5.  s.  12.  1  R.  L.  y5. 


DOG,S. 

"  If  any  dog  shall  kill  or  wound  any  sheep  or  lamb,  the  o 
or  possessor  of  such  dog  shall  pay  to  the  owner  of  such  sheep  qr 
lamb  the  value  thereof,  to  be  recovered  with  costs  of  suit  before 
any  justice1  of  the  peace  of  the  county  where  such  offence  shall  be 
committed  ;  and  if  the  owner  or  possessor  of  such  dog,  or  of  any 
dog  which  shall  chase  or  worry  any  sheep  or  lamb,  shall  not,  within 
forty-eight  hours  after  notice  of  any  such  act,  cause  such  dog  to  be 
killed,  ho  shall  forfeit  the  sum  of  two  dollars  and  fifty  cents,  and 
the  further  sum  of  one  dollar  and  twenty-five  cents  for  every 
forty-eight  hours  thereafter,  until  such  dog  shall  be  killed,  which 
forfeitures  shall  be  for  the  use  of  any  person  who  shall  sue  for  the 
same,  to  be  recovered  with  costs  of  suit  in  manner  aforesaid, 
unless  it  shall  appear  to  the  satisfaction  of  the  justice,  before 
•whom  any  suit  for  the  recovery  thereof  shall  be  brought,  that  it 
\vas  not  in  the  power  of  the  owner  or  possessor  of  such  dog  to 
kill  the  same.  And  further,  it  shall  be  lawful  for  any  person  who 
shall  see  any  dog  chase,  worry,  or  wound  any  sheep  or  lamb,  to 
kill  such  dog.  Provided,  however,  that  nothing  herein  contained 
shall  be  construed  to  prevent  any  shepherd  or  other  person  from 
making  use  of  dogs  to  drive  sheep  under  his  care,  or  owned  by 
him."  Sess.  24-.  c  62.  s.  1.  i  R.  L.  139. 

Where  the  dog  of  A.  is  on  the  land  of  B.  chasing  fowls,  and  in 
WiUtinn,9     the  act  of  destroying  one,  B.  may  lawfully  shoot  at  the  dog,  in  the 
J.*u$.  Rep.     same  manner  a»  if  the  dog  were  chasing  and  killing  sheep,  or  other 
reclaimed  and  useful  animals.     It  is  enough  that  the  fowl  is  on 
the  land  of  B.,  without  showing  property  in  the  fowl ;  and  the  jury 
are  to  decide  whether  the  killing  of  the  dog  is  justified  by  the  ne- 
cessity of  the  case,  and  as  requisite  to  preserve  the  fowl. 

"  If  any  dog  shall  attack  any  person  peaceably  traveller .. 
any  highway,  or  shall  attack  any  horse  in  any  carriage,  or  en 


DUELLING. 

which  any  person  is  mounted,  and  complaint  thereof  be  made  to 
any  justice  of  the  peace,  if  it  shall  appear  to  the  justice  that  such 
complaint  is  well  founded,  and  that  such  dog  is  dangerous,  it  shall 
then  be  the  duty  of  such  justice  to  order  the  owner  or  possessor 
of  such  dog  to  kill  him,  and  if  he  shall  not,  within  forty-eight  hours 
after  having  received  such  order,  cause  such  dog  to  be  killed,  he 
shall  forfeit  the  sum  of  two  dollars  and  fifty  cents,  and  the  further 
sum  of  one  dollar  and  twenty-five  cents  for  every  forty-Right 
Lours  thereafter  until  such  dog  be  killed,  to  be  recovered  and, 
applied  in  manner  aforesaid."  s.  2. 

"  If  any  person  shall  see  any  dog  chase,  worry,  or  wound,  any 
sheep,  it  shall  be  lawful  for  him  to  kill  every  such  dog,  unless  the. 
same  bo  done  by  permission  of  the  owaer  of  suck  sheep."  s.  7. 


DUELLING. 

Not  only  he  who  kills  another  in  a  deliberate  duel,  let  the.  pro-  i  East,  P.  C. 
vocation  have  been  what  it  may,  but  his  second  also,  is  guilty  of  3a*' 
murder :  and  it  has  been  doubted  whether  this  does  not  extend 
even  to  the  second  of  him  who  was  killed,  because  the  death  hap- 
pened upon  a  compact  in  which  all  were  engaged. 

Any  citizen  of  this  state  who  shall  hereafter  give  er  accept  a 
challenge  to  fight  a  duel,  or  shall  actually  fight  a  duel,  although  no 
death  ensue,  and  the  second  or  seconds  of  every  person  offending 
in  the  premises,  shall  be  deemed  guilty  of  a  high  misdemeanour, 
and  on  conviction  before  a  court  of  oyer  and  terminer,  shall  be 
disqualified  from  holding  any  office  of  honour,  profit  or  trust,  and 
voting  at  any  election  within  this  state,  for  the  term  of  twenty 
years.  SPSS.  36.  c.  45.  s.  1.  2R.  L.  192. 

Any  citizen  of  this  state  who  shall,  by  word,  writing,  or  other- 
wise, request  or  invite  any  person  to  meet  him,  with  intent  to  fight 
a  duel,  and  every  citizen  of  this  state  who  shall  meet,  with  intent 
to  fight  a  duel,  and  every  person  knowingly  being  the  bearer  of  any 
challenge  or  message,  sent  with  the  intent  aforesaid,  shall  be 
deemed  guilty  of  the  said  offence,  and  subjected  to  the  said  pur 
nishment. 

Every  offence  against  this  act,  committed  without  the  limits  of 
this  state,  by  a  citizen  thereof,  are  cognisable  in  the  oyer  and  ter- 
iiiiner  in  any  county,  s.  3. 

Any  person  offending  against  this  act  shall  be  a  competent  wit- 
aess  against  any  other  offender,  and  may  be  compelled  to  appear 
and  give  evidence  in  said  court,  touching  the  premises,  but  shall 
not  thereby  be  criminated  himself,  s.  4. 

It  shall  be  the  duty  of  the  justices  of  the  oyer  and  terminer 
and  sessions,  to  give  in  charge  to  the.  grand  jury,  to  inquire  of  all 
against  tkis  act.     s,  .•?.. 


ESCAfE. 

If  any  person,  not  being  a  citizen  of  this  state-,  shall  he  eonvirt- 
ed  in  any  of  the  said  courts  of  the  aforesaid  oilem-u  against  t hit- 
act,  he  shall  he  fined  and  imprisoned  at  the  discretion  of  tin:  court 
having  cognisance,  not  exceeding  five  hundred  dollars,  as  a 
fine,  and  seven  years  imprisonment  in  the  state  prison  at  hard 
labour,  s.  6. 

The  fighting  a  duel,  although  death  do  not  ensue,  is  also  a  mis- 
demeanour, and  punishable  as  such  at  common  law  ;  and   < 
quently  the  sending  a  challenge,  as  its  necessary  tendency  is  to 
produce  a  breach  oi'ihe  peace,  is  likewise  punishable,  as  a  misde- 
meanour, at  common  law.     See  AFFRAY,  I. 


ESCAPE. 

An  escape  is,  where  one  who  is  arrested  gains  his  liberty  be- 
fore hi-  is  delivered  by  course  of  law.  Under  this  head  we 
shall  only  consider  escapes  in  criminal  cases. 

I.   Of  an  escape,  by  a  person  who  has   the  offender   in   his 

custody. 
II.   Of  rescue. 

III.  Of  escape  by  the  party  himself,  and  prison  breaking. 

IV.  Of  retaking  after  an  escape. 

V.   Of  aiding  in  attempting  to  escape. 

I.   Of  escape  by  a  per  son  who  has  the  offender  in  his  custody. 

2  Hawk.  c.  Wherever  any  person  has  another  lawfully  in  his  custody,  whe- 
ther upon  an  arrest  made  by  himself  or  another,  he  is  guilty  of 
an  escape  if  he  suffer  him  to  go  at  large  before  he  has  discharged 
himself  of  him,  by  delivering  him  over  to  some  other  who  by  law 
ought  to  have  the  custody  of  him. 

2  Hawk.  c.  To  constitute  an  escape,  there  must  have  been  an  actual  arrest; 
for  if  an  officer,  having  a  warrant  to  arrest  a  man,  see  him  shut 
up  in  a  house,  and  challenge  him  as  his  prisoner,  without  ever 
having  him  actually  in  his  custody,  and  the  party  gets  free,  the 
officer  is  not  chargeable  for  an  escape.  The  arrest  must  also  be 
justifiable,  for  if  it  ;.ie  either  for  a  supposed  crime,  where  no  such 
crime  was  committed,  and  the  party  not  indicted,  or  for  such  a 
slight  suspicion  of  an  actual  crime,  and  by  such  an  irregular  mitti- 
mus as  will  neither  justify  the  arrest  or  imprisonment,  the  officer 
is  not  guilty  of  an  escape  by  suffering  the  prisoner  to  go  at  large  ; 
and  it  seerosto  be  a  good  general  rule,  that  wherever  an  impri- 
sonment is  so  far  irregular,  that  it  will  be  no  offence  in  the  prisoner 
to  break  from  it  by  force,  it  can  be  no  offence  in  the  officer  to 
let  him  escape  :  and  to  make  the  escape  criminal,  the  offence 
also  must  be  criminal, 


ESCAPE.  97 

IjL'i-i  an  escape,  in  some   cases,  to  suffer  a  prisoner  to  'Live   S  ITawk. c..i9. 

•r  lil>ertjr  than  bylaw  he  ought  to  have,  as  to  admit  a  person   s'  5' 
to  hail  who  is  not   legally  bailable  ;  or  to  permit  a  prisoner  to  go 
oiitofthe  limits  of.  the  prison. 

If  the  gaoler  so  closely  pursue  the  prisoner  who  flies  from  Mem.  s.  6. 
him,  that  he  retakes  him  without,  losing  sight  of  him,  the  law 
looks  upon  the  prisoner  as  being  so  far  in  his  power  all  the  time 
as  not  to  adjudge  such  a  flight  to  amount  to  an  escape  ;  but  if  the 
gaoler  once  lose  sight  of  the  prisoner,  and  afterwards  retake  him, 
he  seems  in  strictness  to  he  guilty  of  an  escape  :  and  a  fortiori 
therefore,  if  he  kill  him  in  the  pursuit,  he  is  in  like  manner  guilty, 
though  he  never  lost  sight  of  him,  and  could  not  otherwise  take 
him,  because  public  justice  is  not  satisfied  by  the  killing  him  in 
such  an  extrajudicial  manner. 

If  a  prisoner  be  rescued  by    the   enemies  of  the  country,  the   2  Hawk,  c. 
gaoler  is  not  guilty  of  an  escape,  as  he  would  have  been  if  he    20>s'9' 
had  been  rescued  by  subjects,  because  against  the  latter  there  is 
a  legal  remedy. 

Although  the  warrant  of  commitment  be  not  strictly  formal,   2  Hawk.  r. 
yet  if  it  be  good  in  substance?  the  gaoler  may  be  made  liable  for 
an  escape. 

Wherever  an  officer  who  has  the  custody  of  a  prisoner,  charged   2  Hawk.  c. 
with  and  guilty  of  a  capital  offence,  knowingly  gives   him  his   li-    Dait.'c. 'i'53. 
beity  with  an  intent  to  save  him,   either  from  his  trial  or  execu- 
tion,  he  is  guilty  of  a  voluntary   escape.     So  if  a  constable  or 
other  officer  shall  voluntarily  suffer  a  thief,  being  in  his  custody, 
to  go  into  the  water  to  drown  himself,  this  is  a  voluntary  escape. 
A  voluntary  escape  is  punishable  in  the  same  degree  as  the  offence   4  Bl.  Com. 
of  which  the  prisoner  is  guilty  arid  for  which    he  is   in   custody;   130' 
hut  the  officer  cannot  be  punished  until  the  original  delinquent  has 
actually  received  judgment  or  been  attainted  :  otherwise  it  might 
happen  that  the  officer  might  be  punished,  and  the  person  escaping 
might  turn  out  to  be  an  innocent  man. 

A  negligent  escape  is,  when  the  party  arrested  or  imprisoned   Dale, c.  150. 
escapes  against,  the  will  of  him  that  arrested  or   imprisoned  him,   2Hawk.c.i9. 
and   is  not  freshl}'  pursued,  and  taken  again,   before   he  has   lost 
sight  of  him.     So  it  is  a  negligent  escape,  if  a  thief  shall,  sud- 
denly, without  the  assent  of  the  officer,  kill,  hang,  or  drown  him- 
self.    So  if  a  person  who  has  power  to  bail,  bail   one  who  is  not 
bailable.     A  negligent  escape  is  punishable  as  a  misdemeanour.        4  BI.  Com. 

1,30. 

II.  Of  rescue. 

Rescue  is  the  forcibly  and  knowingly  freeing  another  from  an   4  BI.    Com, 
arrest  or  imprisonment  ;  and  it  is  generally  the  same  offence  in    131< 
the  stranger  so  rescuing,  as  it  would  have  been  in  a  gaoler  to  have 
voluntarily  permitted  an  escape. 

It  is  immaterial  whether  the  party  be  in  the  custody  of  a  pri-    i  Kaic,  p.c*. 
vate  person  or  of  nn  officer ;  if  in  the  custody  of  a  private  per-    6cr>- 

'.;  is  i 


ESCAPE. 

the  party  rescuing  should  have  knowledge  that  lie  waS  ar- 
n  ..it-il  fur  felony  ;  hut  if  in  the  custody  of  an  oiiicer,  he  must  take 
notice,  of  it  at  his  peril. 

-,   r.i    loin.        A  rescue  of  one  apprehended  for  felony  ;  is  felony,  for  treason, 

i-!l'c.'  Swrf1    treason  :    and  for  a   misdemeanour,  a   misdemeanour  also.     But 

nu.    •  n.      here  likewise,    as    upon    voluntary  escapes,  the   principal    must 

•r..s.  s.  '    "   first  he  attainted  or  receive  judgment   before  the  rescuer  can   be 

punished  ;  and  for  the  same  reason  ;  because,  perhaps,  in  fact  it 

may  turn  out  that  there  has  been  no  offence  committed.     The 

rescuer  is,  notwithstanding,  guilty  of  a  misdemeanour. 

III.   Of  escape  by  the  party  himself,  and  prison  break i< 

2  Hawk.  c.  As  all  persons  are  bound  to  submit  themselves  to  the  judgment 
of  the  law,  and  to  he  ready  to  be  justified  by  it,  whoever  in  any 
case  refuses  to  undergo  that  imprisonment  which  the  law  thinks 
fit  to  put  upon  him,  and  frees  himself  from  it  by  any  artifice, 
before  such  time  as  he  is  delivered  by  due  course  of  law,  is 
guilty  of  a  high  contempt,  punishable  with  fine  and  imprisonment. 

A  breach  of  prison  by  a  person  in  gaol  on  a  charge  of  felony, 
is  itself  a  felony  above  the  degree  of  petit  larceny,  and  punishable 
by  imprisonment  in  the  state  prison,  for  a  period  not  exceeding 
fourteen  years. 

"  In  case  any  person  hath  been,  or  shall  be  sentenced  to  :m- 
prisonment  in  the  state  prison  for  any  term  of  years,  and  shall 
break  the  said  prison,  and  escape  from  thence,  and  be  retaken,  such 
person  being  thereof  convicted,  shall  be  deemed  guilty  of  felony, 
and  shall  be  adjudged  to  imprisonment  in  the  said  prison  for 
double  the  term  of  time  specified  in  the  original  judgment  against 
such  person,  to  commence  from  the  period  of  the  last  conviction, 
notwithstanding  the  term  for  which  such  person  was  to  have  been 
imprisoned  may,  when  such  person  shall  be  retaken,  have  ex- 
pired." Sess.  '36.  c.  29.  s.  15.  1  R.  L.  41 1. 

"  If  any  person  adjudged  to  be  imprisoned  in  the  said  prison, 
otherwise  than  for  life,  shall  escape  from  the  same,  then,  as  often 
as  such  person  shall  so  escape  and  be  retaken,  and  again  impri- 
soned in  the  said  prison,  the  period  for"  which  such  person  was 
adjudged  to  be  imprisoned  in  the  said  prison  shall  always  be 
deemed  to  commence  anew  from  the  day  when  such  person  shall, 
after  having  escaped,  be  retaken  and  imprisoned  again  in  the  said 
prison,  which  day  shall  be  ascertained  by  the  inspectors  of  the 
said  prison  ;  and  every  such  person  may  be  so  retaken  and  im- 
prisoned again,  notwithstanding  the  term  for  which  such  person 
•was  to  have  been  imprisoned  may,  when  such  person  shall  be 
retaken,  have  expired."  s.  16. 

';  If  any  person  imprisoned  in  the  said  prison,  otherwise  than 
for  life,  shall  attempt  to  escape,  or  shall  aid  any  other  person,  im- 
prisoned in  the  said  prison,  rn  escaping,  or  attempting  to  escape 
from  the  same,  such  person  shall  be  deemed  guilty  of  a  misde- 
meanour, and  shall,  on  conviction,  be  adjudged  to  be  imprisoned 


ESCAPE.  (< 

in  the  said  prison,  for  such  further  timo,  not  for  life,  after  the  de- 
termination of  the  term  for  which  such  person  had,  at  the  time 
when  the  said  misdemeanour  was  committed,  been  adjudged  to 
be  imprisoned,  as  the  court  shall  in  their  discretion  deem  pro- 
per." *.  18. 

IV.    Of  retaking  after  an  escape. 

An  officer  making  a  fresh  pursuit  after  a  prisoner  who  had  es-  2  "««'k 
caped  through  his  negligence1,  may  retake  him  at  any  time  after, 
whether  he  find  him  in  the  same  or  in  a  different  county.  And 
it  is  said,  generally,  in  some  books,  that  an  officer  who  has  neg- 
ligently suffered  a  prisoner  to  escape,  may  retake  him  wherever 
he  finds  him,  without  mentioning  any  fresh  pursuit ;  and,  indeed, 
adds  Hawkins,  since  the  liberty  gained  by  the  prisoner  is  wholly 
owing  to  his  own  wrong,  there  seems  to  be  no  reason  he  should 
take  any  manner  of  advantage  from  it. 

It  is,  perhaps,  the  better  opinion,  that  wherever  a  prisoner,  by  2  Hawh. 
the  negligence  of  his  keeper,  gets  so  far  out  of  his  power  that  the  19'  s' 
keeper  loses  sight  of  him,  the  keeper  is  finable  at  the  discretion 
of  the  court,  notwithstanding  he  took  him  immediately  after, 
which,  though  a  good  excuse  for  a  gaoler  in  a  civil  action  for  an 
escape,  will  not  serve  for  the  negligent  escape  of  a  criminal, 
which  is  an  offence  against  the  public.  It  is  also  clear  that  he 
cannot  excuse  himself  by  killing  a  prisoner  in  the  pursuit,  though 
he  could  not  possibly  retake  him  ;  but  must,  in  such  case,  be 
content  to  submit  to  such  fine  as  his  negligence  shall  appear  to 
deserve. 

V.   Of  aiding  in  attempting  to  escape. 

<As  to  prisoners  aiding  other  prisoners  to  escape,  vide  anlc,  III. 

"  If  any  person  shall,  in  any  manner  howsoever,  aid  or  assist 
^ny  person  confined  in  the  said  [slate]  prison,  in  escaping,  or  at- 
tempting to  escape  from  the  same,  such  person  shall  be  deemed 
guilty  of  a  misdemeanour,  and  shall,  on  conviction  thereof  in  due 
form  of  law,  be  adjudged  to  be  imprisoned  in  the  said  prison, 
for  such  term  of  time  as  the  court  in  which  such  conviction  may 
be  had,  shall  in  their  discretion  deem  proper,  not  exceeding  ten 
years."  Sess.  3(3.  c.  29.  s.  1 9.  1  R.  L.  4 1  1 . 

"  Any  person  who  shall  be  duly  convicted  of,  fee.  or  of  aiding 
or  assisting  any  prisoner  lawfully  committed  to,  or  detained  in  any 
gaol,  for  any  felony  whatsoever,  in   escaping,   or  attemptin 
escape  from  such  gaol,  though  no  escape  be  made  ;  or  of  convey- 
ing any  disguise,  instrument,  or  arms,  into  any  gaol,  to  and  for  the 
use  of  any  such  prisoner  so  committed,  or  detained  as  aforesaid, 
with  intention  to  facilitate  his  or  her  escape,  though  no   e.«. 
be  made,  or  attempted  to  be  made,  shall  be  punished  with  impri- 
sonment in  the  said  prison  ;  and  the  court  before  whom  such  con- 
Diction  slip;!!  be  had,  shall,  upon  consideration  of  all  Ac  en 


100 


EXAMINATION. 


stances  of  the  case,  adjudge  such  person,  so  convicted,  to  ii 
sonnvjnt  in  tin-  said  prison  for  any  term  not  exceeding  ten  years, 
aurording  to  the  nature  and  aggravation  of  the  offence."  s.  20. 

!'-'i'-        If  the  party  is  not  in  gaol  on  a  charge  of  felony,  the  assisting 
him  to  escape  will  not  be  felonious. 

,,p|e         A  lying  in  wait  near  a  gaol  by  agreement  with  a  person  in  cus- 


v.  T.in,|>kiii<,   tody  0!>  a  charge  of  felony,  and  convevin;r  him   away,  is  not  a:i 

-><•••>•         •  .  i  • 

TO.  one  nee  within  the  statute.     The  court  said,  the  aso!?tance   must 

appear  to  have  been  rendered  towards  escaping  from  within  the 
gaol,  and  not  merely  in  assisting  the  person  "who  had  got  without 
the  gaol  to  elude  pursuit.  If  this  is  not  the  construction  of  the 
statute,  then  lying  in  wait,  ten  or  twenty  miles  from  the  gaol,  to 
receive  the  person  and  carry  him  further  oC',  would  come  within 
the  statute  ;  the  offence  is  much  more  dangerous,  and  requires  a 
hardy  and  deliberate  purpose,  to  assist  a  prisoner  who  is 
•within  a  gaol  in  escaping  from  the  gaol,  than  to  assist  a  prisoner 
•vvho  iv  without  to  escape  pursuit. 


EXAMINATION. 

<:  Every  justice  of  the  peace  before  wham  any  person  shall  he 
brought  for  any  treason  or  felony,  or  for  suspicion  thereof,  b-'-forc 
he  commit  such  person  to  gaol,  shall  take  the  examination  of 
such  prisoner,  and  the  information  of  those  who  bring  him, 
relative  to  the  fact;  and  the  same,  or  so  much  thereof,  as  shall  be 
material  to  prove  the  offence,  shall  be  put  in  writing  by  the  said 
justice  within  two  days  after  the  said  examination,  and  he  shall 
bind  by  recognisance,  all  the  material  witnesses  against  such 
prisoner  to  appear  and  testify  at  the  next  court  having  cognisance 
of  the  offence,  and  where  the  prisoner  ought  to  be  tried,  and  shall 
certify  the  recognisances,  together  with  the  said  examinations  so 
reduced  to  writing,  under  his  hand,  into  the  said  court  where 
such  witnesses  are  bound  to  appear  on  the  first  day  of  the  sitting 
thereof:  and  if  any  justice  of  the  peace  shall  refuse  or  neglect  to 
the  examinations  and  recognisances,  or  to  certify  the  same 
as  aforesaid,  the  said  court  into  which  the  same  ought  to  have 
been  so  certified  shall,  upon  due  proof  by  examination  before 
them,  impose  such  fine  upon  every  justice  so  refusing  or  ne- 
••'n%  as  to  the  said  court  shall  seem  meet."  Sess.  3t».  c.  10-k 
s.2.  2R.  L.  507. 

Male,s?5.          If  by  some  reasonable  occasion,  the  justice   cannot  at  the  re- 
turn of  the  warrant  take  the  examination,   he    may  by  word   of 
mouth  command  the  constable,  or  any  other  person,  to  detain  in 
custody   the  prisoner  "till  the   next  day,  and   then  to  bring  him 
before  the  justice  for  further  examination.     And  this  detainer  is 
:';abie  by  the  constable   or  any  other  person,  without  showing 
particular  cause  for  which  he    was  to  be  examined,  or  any 
.  -.?nt  in  vrritinir. 


EXTORTION.  101 

Although  the  person    accused  ought  not  to  be  examined  upon   i  Hale,  sss, 


oath,  yet  it'  in  his   examination   he    shall  voluntarily  confess  the   "*•  Dalt*  c' 
matter,  the  examination  may,  when  sworn  to  by  the  person  taking 
It,  lie  given  in  evidence  against  the  prisoner,  hut  not  against  others. 
I'ut  the  information   of  witnesses,  whom  the    j.  (slice  may  hy  his 
warrant  have  brought  before  him,  must  he  upon  oath. 

The  justice  who   takes    the   information    against  the  prisoner,  Dait.  c.  i6j. 
should   take  and  certify  as  well  such  information,  proof,  and  evi- 
dence, as  goes  to  the  acquittal  or  clearing  of  the  prisoner,  as  such 
as  makes  against  him. 

If  a  witness  refuse  to  be  hound,  the  justice  may  commit  him.   ^  llalf«  ^6 
And    the   parties  grieved    ought  to    be   bound,  not  only  to    give 
evidence,  hut  also  to   prefer  a  bill  of  indictment  against  the  pri- 
soner. 

The  party's  confession  must  be  proved  to  have   been   obtained   2  Hale,  285. 
"without  any  promise  of  favour,  menace,  or  undue  terror  ;  for  if 
it  is  obtained  under  such  impressions,   it  cannot  be  received  in 
evidence  against  the  party. 

And  the  identity  of  these  examinations  must  be   proved  at  the   Saund.  263. 
trial,  before  they  can  be  read  in  evidence. 

And  whenever  a  person's  confession  is  made  use  of  against  him,  z  ,IJ5Wk*  c 
it  must  all  be  taken  together,  and  not  by  parcels. 


EXTORTION. 

Extortion  consists  in  any  officer's  unlawfully  taking,   by  colour  4   B1<   Co[»- 
<>f  his  office,  from   ap.y  man,  any  money  or  thing  of  value    that 
is   not  due  to  him,  or  more  than  is  due,  or  before  it  is  due  ;  and 
a  promise  to  pay  money,  in  such  case,   is  without  consideration, 
and  void. 

whetc   a  man  agreed  to   pay  an  officer  a  sum  of  money  if  2  Bun-.  ?<-•*-. 
lie  would  accept  him  as  bail  for  a  person  whom  he  had  arrested  ; 
it  was  held  that  no  action  would  lie  by  the  officer,  as  it  was  his 
duty,  when  sufficient  bail  was  offered  him,  to  accept  it  without 
any  reward. 

There  can  be  no  doubt  but  that  all  officers,  whether  such  by  5  Bae.   Abi. 
the  common  law,  or  made  pursuant  to  statute,  are  punishable  for  21*' 
corruption  and  oppressive  proceedings,  according  to  the  nature 
and  heinousness  of  the  offence,  either  by  indictment,  attachment, 
action  at  the  suit  of  the  party  injured,  loss  of  their  offices,  fcc. 
Besides  which,   all   courts  of  record  have  a  discretionary  power 
over  their  own  officers,  and  are  to  see  that  no  abuses  are  com 
mitted  by  them,  which  may  bring  disgrace  on  the  courts  them- 
selves. 

In  order  to  prevent  and  punish  extortion,  it  is  enacted,  "  That 
no  judge,  justice,  sheriff,  or  other  officer  whatsoever,  ministerial 
or  judicial,  shall  receive,  or  ta>- 1.  any  fee  or  reward  to  do  his  office, 
but  snc,h  an  h  or  shall  be  allowed  by  the  laws  of  this  state  ;  and 


FELONY. 

if  any  doth,  he  shall  restore  to  the  parly  gricTed  double  damages. 
And  further,  that  if  any  judge,  justice,  sheriff,  or  other  officer 
aforesaid,  hath  received  or  taken,  or  shall  receive  or  take,  hy 
colour  of  his  office,  any  fee  or  reward  whatsoever,  not  allowed 
l>y  the  laws  of  this  state,  for  doing  his  office,  and  be  thereof  con- 
victed, either  at  the  suit  of  the  party  grieved,  in  any  court  of  re- 
cord, or  at  the  suit  of  the  people  of  this  state,  in  the  supreme 
court,  or  before  justices  of  gaol  delivery,  or  before  justices  as- 
signed to  hear  and  determine,  or  in  any  court  of  general  sessions 
of  the  peace,  he  shall  be  punished  by  fine  or  imprisonment,  or 
both,  according  to  the  discretion  of  the  court  in  which  such  con- 
viction shall  be  had."  Sess.  1 1.  c.  19.  1  R.  L.  1 11. 

Sheriffs  or  other  officers  are  forbidden  to  ask,  demand,  or  re- 
ceive any  greater  fees  than  are  allowed  by  law,  on  pain  of  forfeit- 
ing treble  damages,  with  costs  of  suit  to  the  party  grieved;  and 
also  two  hundred  ~and  fifty  dollars,  to  be  recovered  in  a  qui  tarn 
action,  or  information,  by  any  person  who  shall  sue  for  the  same. 
Sess.  30.  c.  67.  s.  9.  1  R.  L.  422. 

s  Sac.  Abr.       Extortion   is  punishable  at  common  law  by  fine  and  imprison*- 
raent,  and  loss,  of  office. 


FELONY. 

I.  Felony. 

II.  Misprision  f>f  Felony. 
III.  Theftbote. 

I.  Felony. 

For  the  various  kinds  of  felony,  I  must  refer  to  the  titles  of  this 
digest,  under  which  they  are  respectively  considered.  I  shall,  in 
this  place,  merely  collect  some  few  particulars,  which,  at  the 
same  time  that  they  have  relation  to  all  the  kinds  of  felony,  are 
yet  too  minute  to  demand  a  separate  discussion. 

"  If  any  felon  do  rob  or  take  away  any  money,  goods,  or  chat- 
tels from  any  person,  and  the  said  felon  be  thereof  indicted  and 
found  guilty,  or  otherwise  attainted  by  reason  of  evidence  given 
by  the  owner  of  the  said  money,  goods,  or  chattels,  bills  of  ex- 
change, bills  or  promissory  notes  for  the  payment  of  money,  so 
robbed  or  taken  away,  or  by  any  other  by  his  procurement,  then 
such  owner  shall  be  restored  to  his  money,  goods,  or  chattels,  bills 
of  exchange,  bills  or  promissory  notes  for  the  payment  of  money, 
and  the  court,  before  whom  the  felon  shall  be  so  convicted,  may 
award  writs  of  restitution  for  the  said  money,  goods,  or  chattels." 
Sess.  36.  c.  8.  s.  14.  1  R.  L.  497. 

"  In  all  cases  of  felony  heretofore  committed,  or  which  may 
hereafter  be  committed,  it  shall  and  may  be  lawful  for  any  person 


FELONY.  103 

or  persons  injured  or  aggrieved  by  such  felony,  to  have  and  main- 
tain his,  her,  or  their  action,  against  the  person  or  persons  guilty 
of  such  felony,  in  like  manner  as  if  the  offence  committed  had 
not  been  felonious  ;  and  in  no  case  whatever  shall  the  right  of  ac- 
tion of  the  party  injured  be  deemed,  taken,  or  adjudged  to  be. 
merged  in  the  felony,  or  in  any  manner  affected  thereby."  s.  '20. 

"  No  conviction  or  attainder  of  any  person,  for  any  offence 
specified  in  the  act,  entitled,  ljlnact  declaring  the  punishment  of 
ctrutin  crimes,'  except  treason,  shall  hereafter  work  a  forfeiture  of 
goods,  chattels,  lands,  tenements,  or  hereditaments,  or  of  any 
right  therein ;  and  all  forfeitures  to  the  people  of  this  state 
in  the  nature  of  deodands,  and  in  cases  of  suicide,  and  where 
any  person  shall  flee  from  justice,  shall  be  and  hereby  are  abo- 
lished." s.  3. 

"  The  privilege  or  benefit  of  clergy,  formerly  allowed  in  cri- 
minal cases,  shall  be  forever  abolished."  s.  4. 

"All  appeals  of  felony  shall  be  and  hereby  are  abolished."  s.  21. 

"The  justices  of  the  supreme  court  shall  have  full  power  by 
their  discretion  to  remand  and  send  down,  as  well  the  bodies  of  all 
felons  brought  or  removed  into  the  supreme  court,  as  the  indict* 
ments  against  such  felons,  into  the  said  counties  where  the  same 
felonies  were  or  shall  have  been  committed,  and  to  command  all 
justices  of  gaol  delivery,  justices  of  the  peace,  and  all  other  jus- 
tices and  commissioners,  having  authority  to  hear  and  determine 
the  same  felonies,  to  proceed  and  determine  upon  all  the  aforesaid, 
felons  and  indictments  so  removed  according  to  law,  in  such  man- 
ner as  the  same  justices  of  gaol  delivery,  justices  of  the  peace, 
or  commissioners,  or  any  of  them,  might  have  done  if  the  said 
prisoners  or  indictments  had  never  been  brought  in  the  suprenfe 
court."  s.  7. 

Charges  of  Commitment;  vide  COMMITMENT,  IV. 

"  It  shall  be  in  the  power  of  the  cgurt  before  whom  any  per^- 
sen  shall  have  been  tried  and  convicted  of  any  larceny  or  ottfer 
felony,  at  the  prayer  of  the  prosecutor,  and  on  consideration  of 
his  circumstances,  in  open  court  to  order  the  treasurer  of  the  city 
or  county  in  which  the  offence  shall  have  been  committed,  to 
pay  unto  such  prosecutor  such  sum  of  money  as  to  the  same 
court  shall  seem  reasonable,  not  exceeding  the  expenses  which 
it  shall  appear  to  the  court  the  prosecutor  was  put  unto  in  carry- 
ing on  such  prosecution,  and  making  him  a  reasonable  allowance, 
for  his  time  and  trouble  therein.  When  any  person  from  a  foreign 
state  shall,  at  the  request  of  the  public  prosecutor,  attend  as  a  wit- 
ness to  give  evidence  in  any  public  prosecution,  it  shall  be  the  duty 
of  the  court,  at  which  such  witness  shall  attend,  to  order  the  treasurer 
of  the  city  or  county  in  which  the  offence  shall  have  been  commit- 
ted, to  pay  such  sum  of  money  as  to  the  said  court  shall  seem  rea- 
sonable, for  his  time,  trouble  and  expense.  When  any  poor  person 
shall  appear  on  recognisance  in  any  court  to  give  evidence  against 
another  accused  of  any  larceny  or  othei-  felony,  it  shall  bp  ; 


104  FfcLONV. 

power  of  the  court",  at  tlu>  prayer,  and  on  the  oath  of  such  person, 
and  on  consideration  of  his  circumstances,  in  open  court,  to  order 
(he  treasurer  of  the  city  or  county  in  which  the  offence  shall  have 
been  committed,  to  pay  such  sum  of  money  as  to  the  said  court. 
shall  seem  reasonable,  for  his  time,  trouble  and  expense  ;  which 
order,  in  cither  case,  the  clerk  of  such  court  is  hereby  directed 
forthwith  to  make  out  and  deliver  to  such  prosecutor,  upon  bein/v 
paid  for  the  same  the  sum  of  twelve  and  an  half  cents,  and  no  more, 
and  to  such  poor  witness  without  fee  or  reward  ;  and  the  treasurer 
of  such  city  or  county  is  hereby  required,  upon  sight  of  any  such 
order,  or  as  soon  after  as  he  shall  have  monies  sufficient  in  his 
hands,  forthwith  to  pay  to  such  prosecutor  or  witness,  or  other 
person  authorized  to  receive  the  same,  such  sum  of  money  so  or- 
dered to  be  paid  as  aforesaid."  s.  16. 

"  When  any  person  shall  be  convicted  of  and  fined  for  any  crime 
or  misdemeanour,  the  court  may,  in  their  discretion,  allow  such 
expenses  to  witnesses  and  prosecutors  out  of  the  same  fine,  as 
such  court  shall  judge  reasonable,  not  exceeding  the  sum  of  twen- 
ty-five dollars,  and  shall  cause  an  entry  thereof  to  be  made  in 
the  minutes  of  the  court;  and  the  clerk,  in  the  estreat  thereof,  shall 
mention  the  same,  in  order  that  the  court  of  exchequer  may  know 
how  much  of  the  said  fine  is  to  be  answered  to  the  people  of  thi« 
state  ;  and  when  such  fine  is  paid  to  the  sheriff  or  other  officer,  he 
Khali  pay  such  expenses,  so  allowed,  out  of  the  same."  s.  1  8. 

II.  Misprision  of  Felony. 

4  nt  Com.        Misprision  of  felony  is  the  concealment  of  a  felony  which  a  man 

3  Hale,  37.1.     knows,  but  never  assented  to;  for  if  he  assented,  this  makes  him 

either  principal  or  accessory.  To  save  one's  self  from  the  crime  of 

misprision,  it  is  necessary  to  discover  the  offence  to  a  magistrate 

with  all  possible  speed. 

Every  sheriff,  coroner,  constable,  or  marshal,  who  shall  con- 
ceal, or  procure  to  be  concealed,  any  felony,  shall  be  punished  by 
fine  and  imprisonment,  in  the  discretion  of  any  court  having  cog- 
nisance of  the  offence.  Sess.  24-.  c.  3  I  .  s.  1  .  1  R.  L.  1  4L>. 
Li!'*"8  '  Misprision,  in  a  larger  sense,  is  used  to  signify  every  considera- 
ble misdemeanour,  which  hath  not  a  certain  name  given  to  it  in  th? 
law. 

III.   Theflloit-. 


Theftbotc  is  where  one  not  oniy  knows  of  a  felon}-,  but  faker. 
his  goods  again,  or  other  amends,  not  to  prosecute.  It  is  punisha- 
ble by  fine  and  imprisonment,  unless  it  were  accompanied  with 
some  degree  of  maintenance  or  assistance  given  to  the  felon,  which 
makes  the  party  an  accessory  after  the  fact.  But  the  bare  taking 
of  one's  own  goods  again,  which  have  been  stolen,  is  no  offence  at 
att,  unless  some  favour  be  shown  to  the  thief. 


FERRIES.  105 

FERRIES. 

Licenses  for  keeping  ferries  in  the  respective  counties,  are  li> 
be  granted  by  the  courts  of  common  pleas  for  one  year ;  and  every 
person  applying  shall,  before  the  license  is  granted,  enter  into  a 
recognisance  in  open  court,  in  the  sum  of  one  hundred  dollars, 
faithfully  to  keep  and  attend  such  ferry,  with  a  sufficient  and  safe 
boat,  or  with  such  and  so  many  sufficient  and  safe  boats,  and  so 
many  men  to  work  the  same,  as  shall  be  deemed  necessary,  to- 
gether with  sufficient  implements  for  said  ferry,  during  the  several 
hours  in  each  day,  and  at  such  rates  as  the  common  pleas  shall 
from  time  to  time  order,  which  recognisance  shall  be  filed  with 
the  clerk  of  the  county  : 

And  every  person  who  shall  offend  herein,  may  be  indicted  for 
the  same  before  any  court  of  record  in  this  state  proper  to  hear 
the  same,  and  shall  be  subject  to  such  fine  or  penalty  as  such  court 
may  order  and  adjudge  :  but  it  shall  not  exceed  the  sum  of 
twenty-five  dollars  for  each  offence  ;  and  on  proof  of  such  con- 
viction, the  court  of  general  sessions  shall  direct  his  recognisance 
to  be  estreated. 

If  the  waters  over  which  a  ferry  may  be  erected  divide  two 
counties,  a  license  obtained  in  either  will  be  sufficient. 

No  license  shall  be  granted  to  any  person  other  than  the  owner 
or  occupant  of  the  land  through  which  the  highway  adjoining  to 
any  ferry  shall  run,  unless  such  owner  shall  neglect  to  apply  for 
such  license  in  manner  by  this  act  directed.  Sess.  36.  c.  64-.  8.  2. 
iR.  L.  210.  . 

"  No  person  (except  within  the  southern  district  of  this  state, 
the  counties  of  Orange,  Essex  and  Clinton,  and  except  as  is 
otherwise  provided  for  by  this  act,)  shall  use  any  ferry,  for  trans- 
porting across  any  river,  stream  or  lake,  Within  this  state,  any 
person,  or  any  goods,  chattels  or  effects,  for  profit  or  hire,  unless 
in  the  manner  directed  by  this  act,  under  the  penalty  of  five  dol- 
lars for  each  offence,  recoverable  by  action  of  debt,  with  costs,  by 
and  in  the  name  of  any  person  who  shall  sue  for  the  same  before 
any  justice  of  the  peace  of  the  county  where  such  offence  shall 
happen  ;  or  if  the  same  be  committed  on  waters  dividing  two 
counties,  then  in  either  of  such  counties  ;  which  penalty,  when 
recovered,  shall  be  paid,  one  half  to  the  overseers  of  the  poor  of 
the  town  where  the  offence  shalljiappen,  for  the  use  of  the  pool- 
thereof,  and  the  other  half  to  the  use  Sf  the  plaintiff  in  such  suit ; 
and  if  the  offence  shall  happen  on  waters  dividing  two  towns, 
then  one  quarter  of  the  penalty  shall  be  paid  to  the  overseers 
of  the  poor  of  stich  towns  respectively,  for  the  use  of  the  poor 
thereof."  s.  1. 

On  certiorari  from  a  justice's  court.  Harris  sued  Almy  in  the  Aimyv.  HaV 
court  below  in  an  action  on  the  case,  for  disturbing  him  in  the  R^J,.  175." 
enjoyment  of  a  ferry  across  the  Cayuga  lake,  afc  the  tilla^*  »? 

'   M  •  •» 


106  FIRING. 

Ciuyuga,  granted  fo  Harris  by  the  courts  of  common  pleas  for 
the  counties  of  Cayuga  and  Seneca.  A  judgment  for  damages 
was  given  in  favour  of  Harris,  on  which  the  certiorari  was  brought 
to  (his  court.  Several  errors  were  assigned  ;  but  it  will  be  suffi- 
cient to  state  the  opinion  of  the  court. 

Per  curiam.  There  is  one/errfir  which  we  consider  fatal, 
and  for  that  we  think  tnere  must  be  a  judgment  of  reversal. 
The  act  to  regulate  ferries  within  this  state  prohibits  any  person, 
except  within  the  southern  district,  &cc.  from  keeping  or  using  a 
ferry,  for  transporting  across  any  river,  stream  or  lake,  any  per- 
son or  persons,  or  any  goods  or  merchandise,  for  profit  or  hire, 
unless  licensed  in  the  manner  directed  by  that  act,  under  a  pen- 
alty of  five  dollars. 

If  Harris  had  possessed  a  right,  at  the  common  law,  to  the 
exclusive  enjoyment  of  this  ferry,  then,  the  statute  giving  a 
remedy  in  the  affirmative,  without  a  negative  expressed  or  implied, 
for  a  matter  authorized  by  the  common  'aw,  he  might,  notwith- 
standing the  statute,  have  his  remedy  by  action  at  the  common 
law.  But  Harris  had  no  exclusive  right  at  the  common  law,  nor 
any  right  but  what  he  derived  from  the  statute.  Consequently, 
he  can  have  no  right,  since  the  statute,  but  those  it  gives  ;  anil 
his  remedy,  therefore,  must  be  under  the  statute,  and  the  penalty 
only  can  be  recovered.  Judgment  reversed. 

The  act  saves  all  rights  granted  to  corporations  or  individuals 
t'o  establish  and  maintain  ferries.  3.  1.5. 


FIRING. 

To  prevent  the  firing  of  guns,  pistols,  rockets,  squibs,  and  other 
fire  works,  on  the  eve  of  the  last  day  of  December,  and  first  and 
second  days  of  January,  it  is  enacted,  "  That  if  any  person  or  per- 
sons whomsoever  shall  fire  or  discharge  any  gun,  pistol,  rocket, 
squib,  or  other  fire  work,  within  a  quarter  of  a  mile  of  any  building, 
on  the  said  eve  or  days  before  mentioned,  every  such  person  or 
persona  so  offending,  and  being  thereof  convicted  before  any  jus- 
tice of  the  peace  of  the.  city  or  county  where  such  offence  shall 
be  committed,  either  by  the  confession  of  the  party  or  parties  so 
offending,  or  the  oath  of  any  one  credible  witness,  shall  for  every 
such  offence  forfeit  the  sum  of  forty  shillings,  with  costs  of  suit,  to 
be  levied  by  distress  and  sale  of  the  offender's  goods  and  chattels, 
b  j  warrant  under  the  hand  and  seal  of  the  said  justice  before  whom 
such  conviction  or  convictions  shall  be  had  as  aforesaid ;  the  onr. 
moiety  of  which  forfeiture  to  be  applied  to  the  use  of  the  poor  of 
the  town  or  place  wherein  such  offender  shall  be  convicted,  and 
the  other  moiety  to  the  use  of  the  person  or  persons  who  shall  pro- 
secute for  the  same ;  and  for  want  of  sufficient  distress  whereon 
to  levy  {he  suraej  every  such  justice  is  hereby  empowered  &n/[ 


FORCIBLE  ENTRY  AND  DETAINER.  107 

itquired,  by  warrant  undur  his  hand  and  seal,  to  commit  every 
such  pci'Hon  or  persons,  so  as  aforesaid  offending,  to  the  common 
gaol  of  the  county  wherein  the  said  forfeiture  shall  arise,  there  to 
remain,  without  bail  or  mainprize,  for  the  space  of  one  month,  un- 
less such  forfeiture  or  forfeitures  be  sooner  paid."  Sess-  8.  e.  81. 
1R.  L.  49. 


FORCIBLE  ENTRY  AND  DETAINER. 

A  forcible  entry  and  detainer  is  committed  by  violently  taking  4  B.l.  Com. 
or  keeping  possession  of  lands  and  tenements,  with  menaces, 
force  and  arms,  and  without  the  authority  of  law.  This  was 
formerly  allowable  to  every  person  disseised,  or  turned  out  of 
possession,  unless  his  entry  was  taken  a\vay  or  barred  by  his  own 
neglect,  or  other  circumstances.  But  this  being  found  very  pre- 
judicial to  the  public  peace,  it  was  thought  necessary  to  restrain 
all  persons  from  the  use  of  such  violent  methods,  even  of  doing 
themselves  justice  ;  and  much  more  if  they  have  no  justice  in 
their  claim.  So  that  the  entry  now  allowed  by  law  is  u  peacea- 
ble one  ;  that  forbidden  is  such  as  is  carried  on  and  maintained 
with  force,  with  violence,  and  unusual  weapons. 

J.   JFhat  is  a  forcible  entry  and  detainer. 
II.  How  remedied  by  statute. 

III.  Of  conviction  upon  view. 

IV.  Of  the  proceedings  to  obtain  restitution. 

V.  How  restitution  may  be  superseded  or  set  aside. 
VI.  How  remedied  at  common  law. 

I.   What  is  a  forcible  entry  and  detainer, 

"  No  person  or  persons  shall  hereafter  make  any  entry  into 
any  lands,  tenements,  or  other  possessions,  but  in  cases  where 
entry  is  given  by  the  law  ;  and  in  such  case,  not  with  strong  hand, 
nor  with  multitude  of  people,  but  only  in  peaceable  and  easy' 
manner."  Sess.  1 1.  c.  6.  s.  1.  I  R.  L.  96. 

To  constitute  a  forcible  entry  and  detainer,  an  actual   force  is  Co.  Lit.  257. 
requisite;  the   force  which  the  law  implies  in  every  trespass  is   s'uac. AU-. 
insufficient  for  this  purpose  :  it  must  he  done  with  a  strong  hand,   25*- 
with  unusual  weapons,  or  with  menace  of  life  or  limb;  as  where-    s.  37. 
ver  a  man,  either  by  his  behaviour  or  speech   at  the  time  of  his 
entry,  gives  those  who  are  in  possession  of  the  tenements  which 
he  claims,  just  cause  to  fuarHhat  he  will   do  them  some  bodily 
hurt  if  they  will  not  give  way  to  him,  his  entry  is  to  be  deemed 
forcible,    whether   he    causes  terror  by  carrying   with   him   an 
Unusual  number  of  people,  or  by  arming  himself  in  such  a  man- 
nes  aj  plainly    intimates  a  design  to  back  his  pretensions  by 


103  FORCIBLE  ENTRY  AND  DETAINER. 

force,  or  by  threatening  to  kill,  maim,  or  beat,  those  who  shalT. 
continue  in  possession,  or  by  giving  out  such  speeches  as  plainly 
imply  a  purpose  of  using  force  against  those  who  shall  make  any 
resistance. 

i"if  wk'cuin         A."  entr}"  may    be  forcible  not  only  in  respect  to   an  actual 

Dig  forcible  violence  done  to  the  person,  as  by  beating  a  man  if  he  refuse  to 

3 ''BM %Abr.     relinquish   his  possession,   but   also  in  respect  to  any  other  kind 

25*.  of  violence  in  the  manner  of  the  entry,  as  by  breaking  open  the. 

doors  of  a  house,  whether  any  person  be  in  it  at  the  same  time 

or  not,  especially  if  it  be  a  dwelling  house;    and  perhaps  also  by 

any  act  of  outrage  after  the  entry,   as,  for   instance,  by  carrying 

a\\ay  the  party's  goods.      So  if  a  man  attempt  to  enter  by  force,. 

although  he  afterwards  gain  an  entry  by  entreaty,  or  if  he  enter 

by  force  without  ejecting   the  owner  or  continuing  in  possession, 

it  is  a  forcible  entry  ;  and,  in  a  word,  every  violent  ejection  of  the 

possessor  comes  under  this  head,  although  the  previous   entry 

may  have  been  peaceable. 

"5^253  Abf  ^'  a  raan  cn^ors  to  distrain  for  rent  in  arrear  with  force,  it  is  a 
forcible  entry,  because,  though  he  does  not  claim  the  land  itself, 
yet  he  claims  a  right  and  title  out  of  it,  which  the  statute  forbids 
him  to  exert  by  force. 

oi/s^sel*  C"  H  one  find  a  man  out  of  his  house,  and  forcibly  withhold  him 
from  returning  to  it,  and  send  persons  to  take  peaceable  posses- 
sion of  it  in  the  party's  absence,  this,  by  some  opinions,  says 
Hawkins,  is  no  forcible  entry,  inasmuch  as  he  did  no  violence  to 
the  house,  but  only  to  the  person  of  the  other  :  hut  he  himself  is 
of  a  contrary  opinion  :  for  though  the  force  be  not  actually  done 
upon  the  land,  nor  in  the  very  act  of  entry,  yet  since  it  is  used 
with  an  immediate  intent  to  make  FU<  h  an  entry,  and  the  man- 
ner of  doing  only  prevents  the  opposition,  it  cannot  be  said  to  be 
without  force,  which,  whether  it  be  upon  or  off  the  land,  seems 
equally  within  the  statute.  And  if  a  man  enter  into  lands  where 
any  person's  wife,  children  or  servants  are  upon  the  lands  to  pre- 
serve the  possession,  it  is  a  forcible  entry  ;  because  whatsoever  a 
man  does  by  his  agents  is  his  own  act  ;  but  his  cattle  being  upon 
the  ground  do  uot  preserve  his  possession,  because  they  are  not 
capable  of  being  substituted  as  agents;  and  therefore  their  resid- 
ing upon  the  land  continues  no  possession. 

Forcible^""'        ^  there  be  not  an  actual  entry,  or  if  it  be  not  done  forcibly  or 
«r      A.  3.;      with  a  semblance  of  force,  as  if  a  man  open  the  door  with  a  key, 
V»rk.   or  come  in  through  a  window,  it  is  not  a  forcible  entry  ;  and  for 
r.  01.  s.  26.      the  same  reason,  to  draw  up  a  latch,  or  pull  back  the  bolt   of  a. 
door,   would  not  make  an  entry  forcible,  although  there  are  op'r- 
nions  to  the  contrary  ;  but  surely,  Hawkins  observes,  such  incon- 
siderable circumstances  as  these,  which  commonly  pass  between 
neighbour  and  neighbour,  without  any   offence  at  all,  can   never 
bring  a  man  within  the   meaning  of  these  statutes,  which   speak 
of  entries  with  strong  hand  or  multitude  of  people.      So  if  a  man 
IT-IP,  in  a  peaceable  manner,  and  entice  the  owner  out  of  M'- 


FORCIBLE  ENTRY  AND  DETAINER, 

possession,  or  even  exclude  him  by  shutting  the  door,  without  using 
further  force,  the  entry  is  not  forcible.  So  if  it  amount  to  no 
more  than  a  civil  trespass,  as  if  after  entry  he  cuts  the  corn  ov 
grass  ;  or  if  the  object  of  his  entry  bo  not  wrongful,  as  if  a  man 
go  across  the  land  with  force  or  a  great  company  to  church  01- 
market :  so  if  he  enter  to  execute  process  of  law,  as  to  appre- 
hend a  felon,  or  to  levy  an  execution  :  in  none  of  these  cases  will 
a  forcible  entry  lie.  Nor  if  he  threaten  to  spoil  the  tenant's 
goods,  or  to  destroy  his  cattle,  or  to  do  him  any  injury  which  is 
merely  personal. 

The  same  circumstances  of  violence  or  terror  which  will  make   Com.  Dig. 
an  entry   forcible,  will   make  a  detainer  forcible  also  ;  whence  it  u£,  {a  i.) 
follows,  that    whoever   keeps  in  his  house  an  unusual  number  of  HgVJk'c'  "4" 
people,  or  unusual  weapons,  or  threatens  to  do  some  bodily  hurt 
to  the  former  possessor  if  he  dare  return,  shall  be  adjudged  guil- 
ty of  a  forcible  detainer,  though  no  attempt  be  made  to  re-enter; 
and  it  has  been  said   that  he  also  shall  come   under  the  like  con- 
struction, who  places  men  at.  a  distance  from  the  house,  in  order 
to  assault  any  one   who  shall    attempt  to  make  an    entry  into  it  ; 
;uid  that  he  also  is  in    like   manner  guilty  who   shuts   his  doors 
against  a  justice  of  the  peace  coming  to  view  the  force,  and  obsti-    - 
nately  refuses  to  let  him  come  in.      So  if  a  lessee  at  will  detain, 
with  force,  after  the  will  is  determined,  or  a  mortgagor  after  the 
mortgage   is  forfeited  ;    but   merely   denying    possession    to   the 
lessor,  or  shutting  the  door  against  him,  is 'not  a  forcible  detainer. 

If  a  man  hold  the  possession   by  force,  though   his   entry  was  ^  Bac-  Abl>- 
peaceable,  the  justices  may  remove   him,  if  he  had   no  right  to 
enter. 

If  several  persons  come  in  company  where  their  entry  is  not   3  Ba^-  Aljf- 
.lawful,  and  all  of  them,  except  one,  enter  in  a  peaceable  manner,   257'.  b. ' 
and  that  one   only,   use  force,   it   is  a  forcible  entry  in   them  all, 
because  they  come  in  company  to  do  an  unlawful  act  :   and  there- 
fore the  act  of  the  one  is  the  act  of  them  a!i,  and  he  is  presumed 
.to  be  only  the  instrument  of  the  rest;  but  it  is  otherwise  where 
one  had  a  right  of  entry,  for  there  they  only  come  to  do  a  lawful 
act,  and  therefore  it  is  the  force  of  him  only  that  used  it. 

It  seems  clear,  says  Hawkins,  that  no  one  can  come  within  the   *4  ^J^'  r' 
intention  of  the  statute  by  any  force  whatsoever  done  by.  him  in 
entering  into  a  tenement,  whereof  he    himself  had  the  sole  and 
lawful  possession,  both  at  and  before  the  time  of  such  -entry  ;  as 
by  breaking  open  the  doors  of  his  own  dwelling  house,  or  of  a 
castle  which  is  his  own   inheritance,  but  forcibly    detained  from 
him  by  one  who  claims  the  bare  custody  of  it.     But  lord  Kenyon, 
in  the  case  of  The  King  v.  Wilson,  observes,  that  perhaps  some   g^f*^ *(£: 
doubt  may  hereafter  arise   respecting   what   Mr.  Sergeant   Haw-   4   Bl.   Com- 
kins   says,  that,  at  common  law  the  party  may  enter  with   force 
into  that  to  which  he  has  a  legal   title  ;  but  he  gave  no   opinion 
concerning  that  dictum,  but  leaving  it  to  be  proved  or  disproved 
whenever  the  question  aro<re. 


i  10  FORCIBLE  ENTRY  AND  DETAINER. 

t  Haj3k'  °*'       ^  joint-tenant,  or  tenant  in  common,  may  offend  against  the  sta- 
tute, either  by  forcibly  ejecting  or  forcibly  holding  out  his  cdm- 
panion;  for  though  the  entry  of  such  tenant  is  lawful,  so  that  he 
cannot  be  punished  by  an  action  of  trespass,  yet  the  lawfulness 
of  his  entry  no  way  excuses  the  violence,   or  lessens  the 
done  to  his  companion,  and  consequently  an  indictment  of  forci- 
3  Bme  Ahr     ^'e  entT  'nto  ^le  m°ipt  >'  °^  a  manor,  &c.  is  good, 
is*.  '  But  if  two  are  in  possession  of  a  house,  and  the  one  enters  by 

one  title  and  the  other  by  another,  he  that  has  right  shall  be  sup- 
posed to  be  in  the  possession;  but  the  justices  ought  not  to  inter- 
meddle, because  there  U  no  appearance  of  any  force  in  either:  and 
therefore  the  party  who  thinks  himself  injured  must  have  recourse 
to  an  action  at  law  for  redre 

«4.»,34.'  If  a  man  has  been  in  possession  ef  land  forever  so  lorg  a  time 

by  a  defeasible  title,  and  one  who  has  a  right  of  i-;,:r}  makes  a 
claim  to  the  land,  and  the  wrongful  possessor  s  . -s  his 

occupation  with  force  and  arms,   he  is  pur*;  rc-ible 

entry  and  detainer,  because  all  the  estate  of  which  he  was  seized, 
before  such  claim,  was  wholly  defeated  by  it,  and  hi?  continuance 
in  possession  afterwards,  amounted  in  judgment  of  law  to  a  new 
entry. 

He  who  barely  agree?  to  a  forcible  entry  made  to  his  use,  with- 
out his  knowledge  or  privity,  shall  not  be  adjudged  to  make  an 
entry  within  the  statute,  because  he  no  way  concurred  in,  or 
promoted  the  force. 

'  f'        It  is  said,  that  an  Infant,  or  feme  covert,  may  be  guilty  of  a  for- 
cible entry  and  detainer,  in  respect  to  such  violence  as  shall  be  done 
by  them  in  porson,  but  not  in  respect  to  what  shall  be  done  by 
others  at  their  command,  because  all  such  commands  of  theirs  are 
:  also  it  is  ?iid,  th.it  a  feme  covert  may  be  imprisoned  for  such 
oe,  but  not  an  infant,  because  he  shall  not  be  subject  to  cor- 
poral punishment,  by  force  of  the  general  words  of  any  statute 

i  he  is  not  expreas'y  named. 

Not  only  such  as  have  estates  of  freehold,  but  tenants  for  years, 
ruaidians  may  avail  themselves  of  this  remedy.     Sess.  II. 
c.  6.  s.  0. 

e'  An  indictment  lies  for  a  forcible  entry  into  an  incorporeal  here- 
ditament, as  for  rent ;  which  might  be  committed  either  by  the  les- 
see, or  a  stranger,  violently  resisting  the  landlord  in  making  distress : 
but  a  violence  offered  to  another  with  respect  to  a  way,  or  other 
casement,  does  not  come  within  the  statute. 

Rmfkei. V'  ^  l'es  ^'r  an  entrj"  into  a  church;  and  may  be  brought  at  the  in- 
t-Johns.  R*P.  stance  of  the  trustees  of  the  church,  who  have  a  constructive  pos- 
3  Johnt.  Hep.  session,  by  reason  of  their  having  the  right  of  possession. 

The  trustees  of  the  German  Reformed  Church  in  New-York,  hav- 
147.  m"Rep*  ing  locked  up  the  church,  and  fastened  the  windows,  and  taken 
'      away  the  keys,  the  minister  of  the  church,   and  the  other  defen- 
dants, by  direction  of  a  large  majority  of  the  congregation,  broke 
o  the  church.     The  court  held  that  an  indicUueat  against 


FORCIBLE  ENTRY  AND  DETAINER.  1 1 1 

Jay.  Per  curiam.  The  trustees  have  the  possession  and  custody 
of  the  temporalities  belonging  to  the  church,  whether  the  same 
consist  of  real  or  personal  estate.  They  must  therefore  be  consi- 
dered as  being,  virtute  oflicii,  entitled  to  tho  possession,  and  m 
lawfully  seised  of  the  ground,  and  of  the  buildings  belonging  to  the 
church,  and  the  merit  or  demerit  of  their  conduct,  in  closing  the 
doors  of  the  church  against  the  defendant,  cannot  bo  taken  into 
consideration  in  this  case.  Though  the  trustees  hold  the  church- 
property  in  trust  for  the  church  and  congregation,  still  it  is  their 
possession  ;  and  the  courts  are  bound  to  protect  them  against  every 
irregular  and  unlawful  intrusion  made  against  their  will,  whether 
by  members  of  the  congregation  or  by  strangers. 

II.  How  rtmtdied  by  Statute, 

The  proceedings  under  the  statute  to  prevent  forcible  entry  and  9  J^ns.  Rep, 
detainer,  are  of  a  peculiar  and  anomalous  kind.    They  are  loose  4  Johns.  Rep. 
and  of  a  mixed  nature,  being  in  substance  a  civil,  and  in  form  «  198' 
criminal  prosecution.    The  statute  apparently  contains  provisions 
inconsistent  with  each  other,  or  superfluous,  the  reason  of  which 
is,  that  the  statutes  of  the  5  R.  II.  the  15  R.  II.  the  8  H.  VI.  and 
the  31  Eliz.  on  this  subject,  are  all  literally  copied,  in  succession,^ 
into  our  statute,  though  the  latter  English  statutes  enlarged  ancj 
improved  upon  the  more  imperfect  remedy  given  by  the  two  first 
statutes. 

"  No  person  or  persons  shall  hereafter  make  any  entry  into  any 
lands,  tenements,  or  other  possessions,  but  in  cases  where  entry  is 
given  by  the  law,  and  in  such  case,  not  with  strong  .hand  nor  with 
multitude  of  people,  but  only  in  peaceable  and  easy  manner  ;  and  if 
any  person  from  henceforth  do  to  the  contrary,  and  thereof  be 
duly  convicted,  he  shall  be  punished  by  fine  and  imprisonment. 
^nd  further,  nt  all  times  when  such  forcible  entry  shall  be  made,, 
nnd  complaint  (hereof  cometh  to  the  justices  of  the  peace  of  the 
same  county,  or  to  any  of  them,  the  same  justices  or  justice  shall 
take  sufficient  power  of  the  county,  and  go  to  the  place  where 
such  force  is  made,  and  if  they  find  any  that  hold  such  place  forci- 
bly, after  such  entry  made,  the  same  justices  or  justice  shall  re- 
cord such  force,  and  set  and  impose  a  fine,  not  exceeding  five 
pounds,  upon  every  of  the  said  offenders,'to  be  paid  by  them,  for 
their  said  offences,  to  the  people  of  this  state,  and  cause  every  ol 
theiii,  so  holding  by  force,  to  be  taken  and  put  into  the  next  gaol, 
there  to  abide  convict,  by  the  record  of  the  same  justices  or  jus- 
tice, until  they  shall  have  respectively  paid  such  fine  to  the  people 
of  this  state.  Jind  further,  all  the  people  of  the  county,  as  well  the 
sheriffs  as  others,  shall  be  attendant  upon  the  justices,  to  go  and 
assist  the  same  justices  to  arrest  such  offenders,  upon  pain  of  fine 
and  imprisonment."  Ser,s.  1 1.  c.  tS.s.  I.  1  R.  L.  y(j. 

"An  1  to  the  end  that  the  party  aggrieved,  where  any  person 
shall  make  auy  su<*h  entry  by  fo.rco,  or  stall  er\t?r  In 


j  12        FORCIBLE  ENTRY  AND  DETAINER. 

mumier,'  and  after  hold  by  force,  may  have  restitution.  It  is  mad'-- 
cd,  that  where  any  person  doth  make  any  forcible  entry  into  any 
lands,  tenements,  or  other  possessions,  or  them  hold  forcibly  after 
complaint  thereof  made,  within  the  said  county  where  such  entry 
is  made,  to  the  justices  of  the  peace  of  the  same  county,  or  to  any 
one  of  them,  by  the  party  grieved  ;  the.  same  justices  or  justice, 
so  warned,  within  a  convenient  time,  shall  go  to  the  place  where 
such  force  is  made,  taking  the  power  of  the  county  with  him,  or 
them,  if  need  be,  and  remove  such  force,  if  any  there  be;  and 
shall,  at  the  cost  of  the  party  grieved,  cause  this  act  to  be  dul  j 
executed  ;  and  whether  the  persons  making  such  entries  be  pre- 
sent, or  departed  before  the  coming  of  the  same  justices  or  justice, 
the  same  justices  or  justice,  in  some  good  town  in  the  same  coun- 
ty, next  to  the  tenements  so  entered,  or  in  some  other  convenient 
place,  according  to  their  discretion,  shall  have,  and  either  of  them 
shall  have,  authority  and  power  to  inquire,  by  the  people  of  th» 
same  county,  as  well  of  them  that  make  such  forcible  entries  into 
lands  or  tenements,  as  of  them  which  the  same  hold  with  force  ; 
and  if  it  be  found  before  any  of  them,  that  any  doth  contrary  to 
this  statute,  then  the  said  justices  or  justice  shall  cause  the  lands 
and  tenements,  so  entered  or  holden  as  aforesaid,  to  be  re-seized, 
and  shall  put  the  party,  so  put  out,  in  full  possession  of  the  same 
lands  or  tenements,  so  entered  or  holden  as  aforesaid."  And  the 
statute  makes  void  feoffments  and  discontinuances  made  after 
such  entry  to  defraud  the  lawful  possessor  of  his  recovery,  s.  2. 
"  When  the  said  justices  or  justice  make  such  inquiries  as 
aforesaid,  they,  or  one  of  them,  shall  make  a  warrant  or  precept, 
to  be  directed  to  the  sheriffof  the  same  county,  commanding  him, 
in  the  name  of  the  people  of  the  state  of  New-York,  to  cause 
to  come  before  the  same  justices  or  justice,  at  a  certain  time 
and  place,  therein  to  be  specified,  not  less  than  two  days  from 
the  time  of  issuing  thereof,  twenty-four  good  and  lawful  men 
of  the  same  county,  duly  qualified  to  serve  as  jurors  in  such  coun- 
ty, on  trials  in  the  supreme  court,  to  inquire  of  such  entries;  and 
shall,  at  the  time  of  making  such  warrant  or  precept,  cause  a  no- 
tice in  writing,  of  the  issuing  thereof,  and  of  the  time  and  place  of 
the  return  thereof,  to  be  afiixed  up  in  some  public  and  suitable 
place,  upon  the  lands  or  tenements  so  entered  or  holden,  or  de- 
livered to  the  party  against  whom  such  complaint  is  made,  if  such 
party  be  on  the  premises.  .2/irf  further,  the  sheriff  shall  return 
issues  upon  every  one  of  the  jurors,  at  the  day  .of  the  return  of  the 
lirst precept,  twenty  shillings,  and  at  every  day  after,  the  double. 
And  if  any  person,  who  shall  be  indicted  upon  this  act,  before  such 
justices  or  justice,  shall  immediately  traverse  such  indictment, 
then  the  same  justices  or  justice  shall  make  a  warrant  or  precept, 
to  be  directed  to  the  sheriff  of  the  same  county,  commanding  him. 
in  the  name  of  the  people  of  the  state  of  New-York,  to  cause  to 
«',ome  before  such  justices  or  justice,  at  a  certain  day,  not  less 
than  four,  nor  more  than  eight  days  from  the  time  of  issuing  such 


FORCIBLE  ENTRY  AND  DETAINER.  1 13 

precept,  and  at  a  certain  place  therein  to  be  specified,  twelve  good 
and  lawful  men,  of  the  same  county,  who  shall  be  such  as  are,  <»r 
shall  be,  qualified  to  serve  as  jurors  as  aforesaid,  to  try  the  same 
traverse  ;  and  the  sheriff  shall  return  issues  upon  every  of  them  iti 
Che  manner  aforesaid.  And  if  any  sheriff  be  siack,  and  make  no 
execution  duly  of  such  precept  to  him  directed,  to  make  such  en- 
quiries or  try  such  traverse,  he  shall  forfeit  twenty  pounds,  for 
every  default,  to  the  party  grieved;  to  be  recovered,  with  costs  df 
Suit,  in  any  court  of  record  in  the  same  county  where  the  offence 
shallbe  committed,  by  action  of  debt,  bill,  plaint,  or  information,  s.3. 

"  It  is  enacted,  that  no  restitution  upon  any  indictment  of  forci- 
ble entry,  or  holding  with  force,  be  made  to  any  person  or  per- 
sons, if  the  person  or  persons  so  indicted,  or  his  or  their  an- 
cestors, or  those  whose  estate  they  have  in  such  lands  and  tene- 
ments, hath  or  have  had  the  occupation,  or  hath  or  have  been  in 
<juiet  possession,  by  the  space  of  three  whole  years  together, 
next  before  the  day  of  such  indictment  so  found,  and  his,  her,  or 
their  estate  or  estates  therein  not  ended  or  determined,  which  the 
party  indicted  shall  and  may  allege  for  stay  of  restitution,  and  res- 
titution to  stay  until  that  be  tried,  if  the  party  complaining  will 
deny  or  traverse  the  same  ;  and  then  the  justices  or  justice,  be- 
fore whom  such  indictment  shall  be  found,  shall  proceed  to  try 
the  same,  in  the  manner  herein  before  directed,  s.  4. 

"  If  the  allegation  or  traverse  taken  and  made  by  the  person 
or  persons,  be  tried  against  the  person  or  persons  so  indicted, 
either  before  the  same  justices  or  justice,  or  before  the  justices  of 
the  supreme  court,  or  either  of  them,  in  case  the  proceedings  be 
xemoved  into  the  supreme  court  before  such  trinJ,  then,  and  in 
every  such  case,  restitution  shall  be  awarded  by  the  justices  or 
justice  before  whom  the  same  shall  be  tried,  or  by  the  supremp 
aourt,  in  the  same  manner  as  if  no  plea  or  traverse  had  been  made 
or  put  in  by  such  persons  so  indicted  ;  and  the  person  or  persons 
so  convicted,  shall  pay  such  costs  and  damages  to  the  party  com- 
plaining, as  shall  be  assessed  by  the  justices  or  justice  before  whom 
the  same  is  tried,  or  by  the  supreme  court,  if  the  proceedings 
shall  be  removed  into  the  supreme  court  before  such  trial  as 
aforesaid  ;  the  same  costs  and  damages  to  be  levied  and  recover- 
ed in  the  same  manner  as  costs  and  damages  upon  judgments  in 
other  actions  are  recovered,  s.  5. 

"  This  act  shall  extend  as  well  to  tenants  for  years  and  guardians, 
as  to  such  as  have  estates  of  freehold."  s.  (5. 

By  s.  7.  a  remedy  by  assise  of  novel  disseisin,  or  writ  of  trespass, 
is  given  ;  and  if  an  entry  or  a  holding  with  force  be  found  by  ver- 
dict or  other  due  course  of  law,  the  plaintiff  shall  recover  treble 
damages,  with  costs  of  suit. 

By  s.  8.  mayors,  recorders,  justices  of  the  peace,  aldermen,  and 
sheriffs  of  cities,  are  empowered  to  execute  this  act,  io  !i)ce  B»an- 
BPJ-  3-:  <!;?t;c^  of  *ho  r»cacs  and  sheriffs  of  con^ti«rs. 


FORCIBLE  ENTRY  AND  DETAINER, 

III.   Of  conviction  vpon  view. 

?nurm.2«i.        It  is  not  necessary,  in  order  for  the  justice  to  proceed  under 

bait.  c.  44.  tjle  first  soctioa  of  the  act,  that  complaint  should  be  made  to  him 
by  the  party  grieved,  but  he  ought  to  proceed  upon  any  knowledge 
or  information  whatsoever.  The  act  requires  all  people  of  the 
county  to  be  attendant  upon  the  justices.  The  justice  must  go  to 
the  place  when  the  force  is  made,  and  if  upon  coming  to  a  house 
to  remove  the  force,  the  doors  are  found  shut,  and  those  within 
the  house  shall  deny  the  justice  to  enter,  it  seems  he  may  break 
open  the  house  to  remove  the  force. 

Mathc-v  v.  One  justice  is  competent  to  record  the  force  and  to  convict  ; 

1*"°??'    T        and  his  record  is  a  sufficient  conviction  of  the  offender,  and  is  not 

a  Johns.  Kep. 

44.  traversahle,  because  the  justice,  in  making  it,  acts  not  as  a  minister, 

but  as  a  judge.  It  is  as  strong  and  effectual  as  if  the  offender  had 
confessed  the  force.  When  the  record  shows  that  the  justice 
had  jurisdiction,  and  that  he  proceeded  regularly,  it  is  conclu- 
sive. It  cannot  be  brought  in  question  in  an  action  against  the 
magistrate,  and  is  a  full  and  complete  bar  to  any  suit  against 
him. 

icaines,i29.  ,  It  is  then  the  duty  of  the  justice  to  impose  a  fine  ;  and  a  con- 
SL1^g7k'c"  viction  where  the  party  is  committed  till  a  fine  be  paid,  without 
2  Burn.  263.  imposing  one,  is  bad  ;  and  if  there  are  several  offenders,  the  fine 
must  be  severally  assessed.  It  has  been  adjudged  that  the  jus- 
tice may  assess  the  fine  either  before  the  conviction  or  after  ; 
but  it  is  said  that  the  justice  has  no  power  to  commit  the  offender 
to  gaol,  unless  he  do  it  immediately  upon  the  fact,  or  unless  the 
offender  shall  afterwards  refuse  to  find  sureties  for  his  good, 
behaviour.  It  has  also  been  holder),  that  if  a  person  against 
whom  a  complaint  shall  be  made,  as  having  been  guilty  of  a  for- 
cible entry,  shall  either  traverse  the  entry  or  the  force,  or  plead 
•  that  he  lias  been  three  years  in  possession,  the  justice  may  sum- 
mon n  jury  for  the  trial  of  such  traverse,  for  it  h  impossible  to 
determine  it  upon  view  ;  and  if  the  justice  have  no  power  to  try 
it,  it  would  be  easy  for  any  one  to  elude  the  statute  by  the  tender 
of  such  a  traverse,  and  therefore,  by  a  necessary  construction,  the 
justice  must  needs  have  this  power,  as  incidental  to  what  is  ex- 
pressly given  him. 

2  Bum.  :ej.  If  the  offenders,  at  the  coming  of  the  justice,  make  no  resistance, 
nor  make  show  of  any  force,  the  justice:  cannot  arrest  nor  remove 
them  at  all  upon  such  view. 

L'9!a"k-  «•  In  the  proceedings  under  this  section  of  the  act,  it  need  not  be 
•  n  who  had  the  freehold  at  the  time  of  the  force,  because  it 
equally  punishes  all  force  of  this  kind,  without  regarding  what 
cbtafc  the  party  had  on  whom  it  was  made  ;  yet  it  seems  that  It 
ought  to  show  that  it  was  made  on  the  possession  of  some  person 
who  had  some  estate  in  the  tenements,  cither  as  a  \ 
lessee  for  year?,  or  otherwise. 


FORCIBLE  ENTRY  AXD  DKTAINMLl. 

This  section  of  the  act,  which  is  copied  from  the  5  and  1£-R.  li.   i    }  . 
does  not  give   any  remedy  against  those  who  were  guilty  of  a  6' 
forcible  detainer  after  a  peaceful  entry,  nor  against  those   who 
were  guilty  both  of  a  forcible  entry  and  forcible  detainer,  if  they 
were  removed  before  the  coming  of  a  justice  of  the  peace,  and 
does  not  give  the  justice  any  power  to  restore  the   party  injured 
to  his  possession.     These  deficiencies  are   however  supplied  by 
the  subsequent  sections  of  the  act,   in  which  another  and  more 
tflicacious  mode  of  proceeding  is  pointed  out. 

IV.   Of  the  proceedings  to  obtain  restitution. 

The  third  sec!  ion  of  the  act  contains  the  provisions  under  which  ^:  "'-;n,c : 

J.   People  \. 

modern    proceedings   by    indictment   are   generally    conducted.  Anthony,  4. 
This  section  supersedes  the  uecessity  of  the  justice  previously  •^lil3-ileP' 
going  in  person  to  view  and  record  the  force.     Both  proceedings 
cannot  be  necessary  at  the  same  time  ;  and  though  the  third  sec- 
tion says,  that  "  when  the  justice  makes  such  inquiries,"  he  shall 
issue  his  precept,  this  is  not  to  be  construed  as  imperative  upon 
him  to  have  a  previous  view  and  record  of  the  force,  so  as  to  ren- 
der the  proceedings  erroneous  without  such  previous  view. 

The  tenement  in  which  the  force  was  committed,  must  be  1  Hawk,  r, 
described  with  a  convenient  certainty,  for  otherwise  the  defendant 
will  neither  know  the  special  charge  to  which  he  is  to  make  his 
defence,  neither  will  the  justices  or  sheriff'  know  how  to  restore 
the  injured  party  to  his  possession;  and  from  hence  it  follows 
that  an  indictment  of  a  forcible  entry  into  a  tenement,  or  into  a 
house  or  tenement,  or  into  certain  lands  belonging  to  such  a  house, 
without  showing  in  what  town  it  lies,  is  not  good.  The  indict- 
ment may  he  void  only  as  to  such  part  as  is  uncertain,  and  good 
for  so  much  as  is  certain,  and  therefore  an  indictment  i|tf  a  forci- 
ble entry  into  a  house,  and  certain  acres  of  land  thereto  belong- 
ing, may  he  quashed  as  to  the  land,  and  stand  good  as  to  the  house. 

The  indictment  must  show  that  the  place  wherein  the   force  j    naui.-.  ... 
was  committed  was  the  freehold  of  the  party  grieved  at  the  time  ,6;1-  s-)38- 
of  such  force,  and  unless  this  is  stated,  restitution  cannot  be  award-  Shaw,*"1 
ed  ;  yet  the  delect  may  be  supplied  by  such  words  as  necessarily   j^'^^J1* 
imply  that  the  party  was  seised  at  the  time  of  the  force.     And  if  v.    Kinc, 
it  appear  either  expressly  or  by  implication,  that  the  party  injured  ~  ^"^'^P- 
had  the   freehold  of  the  land  at  the  time  of  the  force,  it  is  not 
necessary  to  show  farther  what  estate  he  had  therein,  or  by  what 
title  he  claims  the  same  ;  for  it  is  not  the  title,  but  the  possession, 
which  is  in  question.     And  upon  the  like  ground  it  has  been  ad- 
judged, that  an  indictment  for  entering  on  my  farmer,  and  forcibly 
expelling  him  and  disseising  me,  is   good,  without  showing  v/ha!: 
estate  such  farmer  had  ;  for  it  is  sufficient  to  show  that,  he  hail 
the   possession,    and  the  injury  complained    of   is  the  forcible 
disseisin  done  to  me,  which   being  the  main  point  of  the  indict- 
jneut,  if  it  he  sufficiently  set  forth  in  substance,  the  indictment  & 


FORCIBLE  ENTRY  AND  DETAINER. 

good  ;  yet  in  this  very  case,  the  want  of  showing  that  such  farmer 
was  ousted,  would  be  an  incurable  fault ;  because,  his  possession 
being  ray  possession,  unless  he  were  ousted  I  could  not  be 
disseised. 

v  JLuirmile        Peaceable  possession  is  evidence  of  seisin  to  support  the  allega- 

ujohufcRep-   lion  in  the  indictment,  that  the  complainant  was  seized.    And  the 

title  to  the  premises  does  not  come  in  question  ;  but  it  is  sufficient 

for  the  complainant  to  recover,  if  he  show  himself  to  have  been  in 

peaceable  possession  before  the  defendant's  entry. 

i  n>«u-  c.  in  an  indictment  on  the  sixth  section  of  the  act,  it  must  be 
s  Bac.  Abr.  shown  that  the  party  injured  was  possessed  of  such  an  estate  as 
would  bring  him  within  the  provision  ;  therefore,  if  the  indictment 
set  forth  in  general  that  the  party  was  possessed,  or  that  he  was 
possessed  for  a  certain  term,  without  adding  that  it  was  for  years, 
is  not  good.  And,  generally,  an  indictment  under  any  of  the 
branches  of  the  act  should  show  what  estate  the  party  expelled 
had  in  the  premises,  that  it  may  appear  that  he  came  within  its 
provisions. 

Hawk.  c.  ^  repugnancy  in  setting  forth  the  offence  is  an  incurable  fault ; 
as  if  the  indictment  set  forth  that  the  party  injured  was  possessed 
of  a  term  for  years,  and  that  the  defendants,  with  strong  hand, 
ousted  and  disseised,  is  void,  because  it  is  absurd  and  contradic- 
tory to  set  forth  a  disseisen  of  such  an  estate,  whereof  it  is  im- 
possible that  any  man  can  be  disseised. 

i  Hawk.  c.        An  indictment  of  a  forcible  detainer,  without  showing  that  the 

The  People    defendant  made  an  entry,  either  forcible   or  peaceable,  into   the 

v.  siiaw.        lands,  is  not  good,  because  the  statute  does  not  prohibit  one  who 

125.  has  always  been  in  possession  to  maintain  the  same  by  force. 

i  Hawk.   c.        jj  nas  Deen  resolved  that  no  indictment  can  warrant  an  award 

of  restitution,  unless  it  find  that  the  wrong  doer  both  ousted  the 

party  griaKed,   and  also  continues  his  possession  at  the  time  of 

finding tn^  indictment;  for  it  is  a  repugnancy  to  award  restitution 

of  possession  to  one  who  never  was  in  possession,  and  it  is  vain 

to  award  it  to  one  who  does  not  appear  to  have  lost  it. 

i  Hawk.  c.  The  time,  and  place  of  the  disseisin  are  sufficiently  set  forth  in 
an  indictment,  alleging  that,  the  defendant  on  such  a  day  entered, 
Sfc.  and  him  the  said  Jl*  73.  ivith  strong  hand  disseised,  without 
adding  the  words  then  and  there  ;  for  inasmuch  as  the  entry  and 
disseisin  are  both  of  them  of  the  same  nature,  and  the  one  of 
them  naturally  tends  to  cause  the  other,  it  is  implied  that  they 
both  happened  at  the  same  time. 

}  Hawk.    c.       An  indictment  alleging  the  entry  to  have  been  made  with  strong 
kex  v.  v/ii-  hand,  need  not  expressly  say  that  it  was  made  with  force  and  arms* 
R"P  Ss57C1"  l)('eausc  those  words  are  implied  in  the  former.     Likewise  an  in- 
dictment may  be  good  without  mentioning  any  complaint,  for  if 
a  justice  of  the  peace  have  by  any  means  whatsoever  notice  of  a 
forcible  entry  or  detainer,  he  may  and  ought  to  proceed  against 
the  same  according  to  the  statute,  as  being  a  disturbance  of  tKc 
public  peace. 


FORCIBLE  ENTRY  AND  DETAINER.  117 

If  a  bill  both  for  a  forcible  entry  and  forcible  detainer  be  pre-  i  Hawk.  c. 
xerred  to  a  grand  jury,  and  found  ignoramus  as  to  the  entry,  and  64-s<42» 
billa  vera  as  to  the  detainer,  it  is  void,  because  a  grand  jury   can- 
not find  a  bill  true  for  part  and  false  for  part,  as  a  petit  jury  may. 

If  the  grand  jury,  having  been  summoned  according  to  the 
provisions  of  the  act,  s.  '3.  find  the  indictment,  the  defendant  must 
be  admitted  to  traverse  it  by  pleading  not  guilty  to  the  force,  or 
to  plead  his  three  years  possession  in  bar  under  the  fourth  sec- 
tion of  the  act,  which  if  denied  by  the  party  complaining,  the 
justice  is,  in  all  these  cases,  required  to  summon  a  petit  jury  to 
try  the  traverse. 

That  the  continuance  of  a  possession  for  three  years  may  be  a  i  Hawk,    i . 
bar  to  restitution,   such  possession  must  have  continued    without 
interruption  during  three  whole  years  next  before  the  indictment ; 
and  therefore,  if  one,  who  has  been   in  possession  of  land  for  '.. 

three  years  or  more,  be  forcibly  ousted,  and  then  restored,  he  can- 
not justify  a  forcible  detainer  till  he  have  been  in  possession 
again  for  three  years  after  such  restitution  ;  and  also  for  the 
same  reason  it  has  been  said,  that  he  who,  under  a  defeasible  title, 
has  been  ever  so  long  in  possession  of  land  to  which  another  has 
a  right  of  entry,  cannot  justify  a  detainer  at  any  time  within  three 
years  after  a  claim  made,  by  him  who  has  such  right,  because 
all  defeasible  estates  in  the  land  are  wholly  defeated  by  such  a 
claim,  and  the  subsequent  continuance  in  possession  amounted  to 
a  new  entry. 

It  had  been  held  by  some  that  the  three  years  possession  must  1  Hawk.  c. 
be  of  a  lawful  estate,  but  Hawkins  is  of  opinion  that  three 
years  continuance  of  a  defeasible  possession  would  justify  a  de- 
tainer by  fo  ,e  against  a  stranger,  inasmuch  as  he  cannot  take  ad- 
vantage of  an  ther's  right,  and  bare  possession  is  a  good  title  against; 
all  persons  except  him  who  has  the  right,  and  cannot  be  lawfully  de- 
feated by  any  other.  Also,  that  if  one  who  has  the  mere  right  to 
lands,  neglect  to  recover  the  possession,  'till  in  judgment  of  law  he 
has  no  more  right  to  such  possession,  until  he  recover  it  by  action, 
than  a  mere  stranger,  there  does  not  seem  to  be  any  reason  that 
he  should  have  more  advantage  against  a  forcible  detainer  than  if 
he  were  a  mere  stranger. 

Holding  over  by  force,  where  the  tenant's  title  was  under  a  Cro.Jac.  is?. 
lease  then  expired,  is  said  to  be  a  forcible  detainer. 

It  has  been  held  that  a  peaceable  continuance  in  possession  for  i  Hawk.  c. 
tbree  years  after  a  forcible  entry,  under  any  title  whatsoever,  will 
not  justify  a  forcible  detainer,  inasmuch  as  the  possession  was  at 
first  gained  by  force  ;  but,  says  Hawkins,  I  cannot  think  this 
a  reasonable  construction,  for  the  force  in  the  detainer  being  after 
three  years  quiet  possession,  seems  justifiable  by  the  express  words 
of  the  statute  :  and  where  the  force  used  in  gaining  a  possession  is 
afterwards  wholly  laid  aside,  there  seems  to  be  no  colour  to  say, 
that  it  makes  the  subsequent  possession  less  quiet  or  peaceable 
than  it  would  have  been  if  there  had  been  no  force  at  all  used  at 
ihe  ftrst. 


118 


1    Hawk.    c. 
64.  I.  56. 


n  Bac.  Abr. 
259.  1  Hawk, 
c.  64. 1.  57. 


1    Bac.  Abr. 

250.  1  Hawk. 

c.  64.  s.    57, 

53. 

The     People 

T.     Aiitlicny, 

cited    infra. 


Hawk. 
i.  I.  4-5. 


:    Hawk. 

54.  s.  40. 


S   Baa.  Abr. 

233. 

1    Hawk.    c. 

64.  s.  49,  SO, 

51. 


1    Hawk.    c. 
64.5.  52. 

1  Caines'Rcp. 
1 15.  4  Johns. 
Rep.  198. 
The  People 
v.  King, 

2  Caines' 
Rep.  93. 


*   FORCIBLE  ENTRY  AND  DETAINER. 

The  plea  of  possession  is  good,  without  showing  under  what 
title,  or  of  what  estate  such  possession  was,  because,  it  is  not  the 
title,  but  the  possession  only,  which  is  material  in  this  case. 

If  one  who  has  been  three  years  in  possession  be  afterwards 
ousted,  and  the  same  day  re-enter  with  force,  and  be  also  indict-,  d 
on  the  same  day  ;  yet  it  seems  that  by  the  plain  manning  and 
reason  of  the  statute,  he  can  no  more  bar  the  restitution  of  the 
party  forcibly  entered  upon,  than  if  he  had  been  inuictc 
another  day. 

If  the  defendant  tender  a  traverse  of  the  force,  no  restitution 
ought  to  be  awarded  till  such  traverse  be  tried,  in  order  to  which, 
the  justice  before  whom  the  indictment  is  found  ought  to  award 
a  venire  for  a  jury ;  but  if  such  jury  find  so  much  of  the  indict- 
ment to  be  true  as  will  warrant  a  restitution,  it  will  be  sufficient, 
though  they  find  the  other  part  of  it  to  be  false  ;  as  if  they  find 
that  the  entry  was  peaceable,  and  the  detainer  only  forcible. 

When  tlie  jury  finds  for  the  prosecutor,  if  he  become  entitled 
to  judgment  by  the  confession  of  the  defendant,  or  in  any  other 
manner,  the  justice  must  award  restitution  to  the  party  injured. 

Restitution  ought  only  to  be  awarded  for  the  possession  of  such 
tenements  as  ;uv  visible  and  corporeal  :  for  all  the  remedy  that 
can  bedesir.-d  n.T."iii';t  a  force  offered  to  a  man  in  respect  to  such 
as  are  incorporeal,  is  to  have  the  actual  force  removed,  and  the 
offender  punished,  which  may  be  done  by  virtue  of  the  first  sec- 
tion of  the  act  alone. 

I-Vstitution  shall  only  be  given  to  him  who  is  found  by  the  in- 
dictment to  have  been  put  out  of  an  actual  possession,  and  conse- 
quently it  h>lK«ll  not  be  awarded  to  one  who  was  only  seised  in. 
law,  as  to  an  ht-ir  upon  whom  a  stranger  abates,  on  the  death  of 
Mo  HI  c.etn.nr,  before  any  actual  entry  made  by  such  heir;  and 
from  the  same  ground  it  follows,  that  it  shall  not  be  granted  to  an 
licir  upon  an  indictment  finding  a  forcible  entry  made  upon  his 
ancestor. 

The  same  justice  or  justices,  before  whom  the  indictment  is 
found,  may  award  restitution,  but  no  other  justices,  unless  the  in- 
dictment be  removed  by  certiorari,  in  which  case  the  court  above 
may  restore  the  party.  And  the  justice  may  execute  the  same  in 
person,  or  make  his  precept  to  the  sheriff  to  do  it. 

The  sheriff,  if  need  be,  may  raise  the  power  of  the  county  to 
assist  him  in  the  execution  of  a  precept  of  restitution. 

The  statute  gives  damages  and  costs  only,  when  the  party  in- 
dicted traverses  the  indictment,  and  is  convicted. 

On  certiorari.  It  was  moved  to  quash  the  conviction,  and  that 
a  re-restitution  issue  ;  six  objections  were  raised  :  the  following 
arc  those  which  were  taken  notice  of  by  the  court.  The  2d. 
Twenty-four  persons  were  sworn  upon  the  grand  jury,  who  found 
the  bill,  so  that  more  than  twelve  were  necessary  to  the  finding. 
5th.  Because,  when  the  defendant  voluntarily  appeared  and  of- 
fered to  traverse,  he  was  refused.  6th.  Because  it  is  not  alleged 


FORCIBLE  ENTRY  AND  DETAINER.  119 

that  the  complainant  was  seised  or  possessed  of  the  premises. 
KENT,  Ch.  J.  held  all  these  objections  fatal. 

On  certiorari,  brought  by  the  defendant,  who  had  been  found  Jh^^!* 
guilty,   and   restitution  awarded.     KENT,  Ch.  J.    delivered    the  4 John*. Hep. 
opinion  of  the  court.     One  objection  to   the  proceedings  in  this   198- 
case  is,  that  there  was  no  legal  traverse,  because  it  is  not  shown  to 
have  been  in  writing.     The  record  states,  that  "  the  indictment 
being  read  to  the  defendant  by  the  justice,  he  pleaded  thereto, 
that  he  was  not  guilty  of  the  premises  in  the  said  indictment  by 
the  said  jurors  found."     The  words  of  the  statute  are,  "  that  if 
any  immediately  traverse  such  indictment,  then  the  justice  shall 
make  a  precept,"  fee.     There  is  nothing  in  the  statute  requiring 
this  traverse  of  the  force  to  be  in  writing  ;  and  though  Hawkins 
says,  that  it  must  be  done  in  writing,  and  not  by  a  bare  denial  of 
the  force  by  parol,  yet  none  of  the  authorities  to  which  he  refers 
appear  to  support  this  position,  and  it  is  against  all  the  rules  of 
pleading  in  criminal  cases. 

Another  objection  is,  that  the  conviction  is  not  warranted  by  the 
indictment,  as  the  latter  is  for  a  forcible  entry  and  detainer,  and 
the  former  of  a  detainer  only.  There  is  no  weight  in  this  objec- 
tion. On  an  indictment  for  a  forcible  entry  and  detainer,  the 
petit  jury  may  find  the  defendant  guilty  of  the  detainer  only,  for. 
a  writ  of  restitution  will  equally  go,  as  if  the  conviction  had  reach- 
ed to  the  whole  indictment,  and  the  assessment  of  the  damages 
will  be  in  proportion  to  the  degree  of  guilt  or  injury.  On  an  in- 
dictment for  grand  larceny,  the  defendant  may  be  found  guilty  of 
petit  larceny  only  ;  or  on  an  indictment  for  robbery  or  burglary, 
he  may  be  found  guilty  of  simple  larceny  ;  and  on  an  indictment 
for  murder,  the  verdict  may  be  for  manslaughter,  and  these  seve- 
ral convictions  will  be  good.  The  same  reason  applies  to  the  pre- 
sent case. 

The  last  objection  which  I  shall  notice  is,  that  the  justice  ought, 
to  have  set  a  fine  upon  view  of  the  force.  The  record  states, 
that  after  the  verdict  and  award  of  restitution,  the  justice  did 
"  adjudge  that  the  said  A.  pay  to  the  said  C.,  for  his  damages, 
which  he  had  sustained  in  the  premises,  twenty-four  dollars." 
The  statute  says,  that  the  party  convicted  upon  the  traverse, 
"shall  pay  such  costs  and  damages  to  the  party  complaining,  a* 
shall  bo  assessed  by  the  justice  before  whom  the  same  is  tried.'' 
It  appears  then,  that  the  assessment  in  this  case  was  strictly  in 
conformity  with  the  statute.  The  fim:  spoken  of  in  the  books,  is 
when  the  justice  convicts  one  of  a  forcible  detainer  upon  view, 
according  to  the  provision  in  the  first  section  of  the  statute ;  bul: 
in  a  proceeding  by  indictment  and  traverse,  under  the  third  sec- 
tion, as  this  was,  the  assessment,  as  in  the  present  case,  must  be 
correct. 

An  indictment  fora  forcible  entry  and  detainer  was  removed   T''°  People 
"hy  a  d , -iio.-dri,  and  a  ddault  having  been  entered  against  the  d:>- 
co'.ut  above,  it  was  now  moved  tr»  set  as;  ' 


FORCIBLE  ENTRY  AND  DETAINER. 

proceedings,  on  the  ground  of  irregularity,   that  J.  F.  was  land 
lord  of  the  tenant  in  possession  of  the  premises  ;  and  that  thr 
defendant  had  a  good  defence  on  the  merits. 

Per  curiam.  On  the  merits  we  are  of  opinion  the  proceeding* 
ought  to  be  set  aside.  Here  is  colour  for  the  suggestion,  that  the 
defendant  was  tenant  to  J.  F.  ;  at  least  the  fact  is  litigated,  and 
ought  to  be  otherwise  determined.  This  is  an  application  to  the 
equitable  discretion  of  the  court ;  and  those  who  stand  behind 
the  tenant,  may  here,  as  in  ejectment  at  common  law,  and  inde- 
pendent of  the  statute,  be  received  to  defend  the  right.  J*F. 
claiming  the  premises  as  landlord  of  the  defendant,  and  the  latter 
disclaiming  his  title,  and  attorning  to  another,  are  facts  which  may 
be  tried  in  the  present  action,  and  ought  to  arrest  any  collusive, 
proceedings  between  the  prosecutor  and  the  defendant.  It  is 
unnecessary  here  to  say  in  what  form  the  landlord  may  be  ad- 
mitted to  defend ;  but  his  right  to  make  a  defence,  we  think, 
is  undoubted. 

V.   How  restitution  ,nay  be  superseded  or  set  aside. 

i  Hawk.  c.  The  same  justices  by  whom  a  restitution  is  awarded,  upon  au 
64.  $.60, 6i.  indictment  of  forcible  entry  or  detainer  found  before  them,  may 
also,  afterwards,  upon  an  insufficiency  of  the  indictment  appear- 
ing unto  them,  supersede  the  same  before  it  is  executed  :  and  it 
has  also  been  said,  that  if  such  an  indictment  be  taken,  and  resti- 
tution awarded  by  four  or  five  justices,  that  two,  or  even  one,  of 
the  same  justices  may  supersede  the  execution  thereof,  as  well 
as  more  or  all  of  them.  But  no  other  justices  have  such  power. 
However,  it  is  certain  that  a  ctrliorari  is  a  supersedeas  to  such 
restitution,  and  avoids  any  restitution  which  is  executed  after  the. 
teste,  but  does  not  bring  the  justices  into  a  contempt,  unless  they 
proceed  after  it  has  been  delivered  to  them. 

ThRPetP|le  ^  was  sa'^  ky  the  supreme  court,  that  the  granting  the  ccrtio- 
f> Johns.  Rep.  rari  to  remove  the  proceedings,  is  as  much  a  matter  of  course, 
j54'  as  the  granting  of  a  habeas  corpus.  Where  the  right  to  the  pos- 

session of  land  is  in  question,  the  party  has  a  right  to  have  it 
tried  ia  this  court. 

The  People  From  the  general  discretionary  power  the  supreme  court  haF 
H^ne^Rep.  in  these  cases,  they  may  set  a  restitution  aside,  and  award  a  rc- 
1:5.  Per  restitution,  (whenever  it  shall  annear  that  restitution  hath  been 

•I'ttvis  Ch.  J 

illegally  awarded,)  either  for  insuificiency,  or  defect  in  the  indict- 
ment, or  other  cause.  It  was  decided  in  this  court  in  the  case  of 
Beebe  and  others  ads.  The  People,  (January  term,  1802,)  that  if 
the  indictment  be  bad,  re-restitution  must  follow  of  course  :  and 
in  that  case  the  indictment  was  quashed  and  re-restitution 
awarded.  But  this  is  not  within  any  of  the  statute  provisions  for 
costs,  and  none  are  recoverable. 

^h<Ki^p:e         On  a  moti°n  for  re-restitution,  the  court  will  not  decide  bj 
caincJ'        affidavit  on  the  title  er  rights  of  the  partv.     The  complninair 

'•3. 


FORGERY. 

below  must  give  up  the  possession  irregularly  obtained,  put  Ae 
defendant  in  statu  quo,  and  then  proceed  legally  to  the  question 
of  title. 

Where  the  indictment  is  removed  before  conviction,  the  tra-  s  Johns.  Rep. 
verse  may  be  tried  at  the  sittings  or  circuit.  Rep.447, 

If  the  supreme  court  affirm  the  conviction,  and   if  restitution   4  Johns.  Rep. 
Las  not  already  been   had,   the  court  will  award  the  same,  with,  1OT* 
process  of  execution  (if  the  case   comes  within  the  provision  of 
the  act  giving  damages  and  costs)  for  the  damages  assessed,  to- 
gether with  the  costs  in  this  court  to  be  taxed  against  the  de- 
fendant. 

VI.  How  remedied  at  common  law. 

An  indictment  for  a  forcible  entry  will  lie  at  common  law,  by  Res  v.  sfti-r, 
which  the  party  may  be  punished  for  a  breach  of  the  peace.  The  R^  "  yr>  g^' 
indictment  ought  to  show,  upon  the  face  of  it,  an  indictable  of-  sBurr,  173*! 
fence,  as  that  the  entry  was  made  "  with  a  strong  hand  ;"  but  the  wuson. 
words,  "  with  force  and  arms,"  are  insufficient  to  support  the  in-  LT'£'j?J^ 
dictment,   for  they  are  no  more  than  are  used  in  every  action  of  045. 
trespass.  It  does  not  appear  to  be  necessary  to  state  the  interest  of 
the  prosecutor  in  the  lands  or  tenements  ;  but  the  safest  and  most 
•usual  way  is  to  proceed  upon  the  statute,  above  set  forth  and 
Commented  upon. 


FORGERY. 

Forgery  is  the  fraudulent  making  or  alteration  of  a  writing,  to  4  BJ.  Com, 
the  prejudice  of  another  man's  right;  and,  at  common  law,  was  **7' 
punishable  by  fine  and  imprisonment. 

I.  What  is  necessary  to  constitute  forgery. 

II.  As  to  what  writings  it  may  be  committed, 

III.  Publishing  or  uttering. 

IV.  Punishment. 

I.   What  is  necessary  to  constitute  forgery. 

A.  deceitful  and  fraudulent  intent  is  of  the  essence  of  this  offence.  aEiut,  P.  c 
Therefore,  if  one  alter  an  instrument,  without  the  appearance  of  8i*' 
a  fraudulent  design  to  cheat  another,  as  by  erasing,  in  a  bond  made 
to  himself,  the  greater  sum,  and  inserting  a  less,  it  is  not  forgery. 
But  it  is  said  that  it  would  be  forgery,  if  it  any  way  appeared  to  be 
done  with  a  view  of  gaining  an  advantage  to  the  party  himself,  or 
of  prejudicing  a  third  person  ;  and  in  all  cases  of  forgery,  proj.rrly 
so  called,  it  is  immaterial  whether  any  person  be  actually  injured 
or  no^.  provided  any  may  be  prejudiced  by  it. 


FORGERY. 


.  c.  .The  very  making,  with  such  fraudulent  intent,  and  without  law- 
ful authority,  of  any  instrument  which  by  common  law,  or  by  sta- 
tute, is  the  subject  of  forgery,  is  of  itself  a  sufficient  completion  of, 
the  offence,  even  before  publication,  and  of  consequence  before 
any  actual  injury  sustained  :  for  though  publication  be  the  medium 
l«y  which  the  intent  is  usually  made  manifest,  yet  it  may  be  proved 
as  plainly  by  other  evidence.  And  by  the  statute  law,  the  publica- 
tion, with  knowledge  of  the  fact,  is  for  the  most  part  made  a  sub- 
stantive offence. 

2  Kast.p.  c.  If  a  bill  of  exchange,  payable  to  A.  or  order,  get  into  the  hands 
of  another  person  of  the  same  name  with  the  payee,  and  such 
person,  knowing  that  he  is  not  the  real  payee  in  whose  favour  it 
was  drawn,  indorse  it  for  the  purpose  of  fraudulently  possessing 
himself  of  the  money,  he  rs  guilty  of  forgery.  So  if  one  put  off  a 
note,  subscribed  w  ith  his  own  name,  as  the  note  of  another,  it  is  a 
false  uttering  and  publishing  within  the  statute. 

;  c.  3Iakirg  a  fraudulent  insertion,  alteration,  or  erasure,  In  any  ma- 
terial part  of  a  true  instrument,  although  but  in  a  letter,  and  even 
if  it  be  afterwards  executed  by  another  person,  he  not  knowing  of 
the  deceit  ;  or  the  fraudulent  application  of  a  true  signature  to  a 
fr.lse  instrument,  for  which  it  was  not  intended,  or  vice  versa,  are 
as  much  forgeries  as  if  the  whole  instrument  had  been  fabricated  ; 
for  any  such  alteration  gives  it  a  new  operation  :  as  by  altering  the 
date  of  a  bill  of  exchange,  after  acceptance,  whereby  the  payment 
was  accelerated. 

2  East,  r.  c.        In  all  cases,  the  thing  made  must  be  false  ;  for  certainly  a  man 

836>  cannot  be  guilty  of  forgery,  merely  by  passing  himself  off  for  the 

person  whose  real  signature  appears,  although  for  the  purpose  of 

fraud,  and  in  concert  with  such  real  person  ;  for  there  is  no  false 

making.  But  this  appears  to  be  a  false  pretence  within  the  act. 

2  East,  r.  c.        Where  the  forgery  consists  in  counterfeiting  any  other  known 

is8.  MS.         instrument,  it  is  not  necessary  that  the  resemblance  should  be  an 

exact  one  ;  if  it  be  so  like  as  to  be  calculated  to  deceive,  where 

ordinary  and  usual  observation  is  given,  it  seems  to  be  sufficient. 

But  it  is  necessary  that  the  forged  instrument  should,  in  all  essen- 

tial pruts,  have  upon  the  face  of  it  the  similitude  of  a  true  one  :  so 

that  it  be  not  radically  defective  and  illegal  in  the  %ery  frame  of  it. 

2  East,  P.  c.        Where  the  forged  instrument  appears  on  the  face  of  it  to  be  in- 

9i&        valid,  it  will  not  support  the  indictment  ;  as  if  a  man  forge  a  will  of 

freehold  lands,  which  is  attested  but  by  two  witnesses,  it  is  not 

felony,  because  the  statute  of  frauds  requires  the  attestation  of 

three  witnesses  ;  it  is,  however,  otherwise,  where  the  want  of  vali- 

dity in  the  instrument  must  be  collected  from  extrinsic  circum- 

stances ;  as  if  a  man  publish  a  forged  will,  and  it  appear  that  the 

person  by  whom  it  is  purported  to  have  been  made  is  living. 

r.  The  prisoner  was  comicted  of  uttering  a  forged  note,  purport- 

Ilcp    ing  to  be  a  bank  note  of  the  Vermont  state  bank,  for  seven; 

cents,  with  intent  to  defraud  one  I.  W.  and  also,  with  feloniously 
having.  the  same  note  iu  his  possession,  with  intent  to  pass  it  and 


FORGERY.  i  i 

defraud  some  person  or  body  politic  unknown.  Per  curium.  The 
act  of  the  21st  of  March,  1801,  (sess.  24.  c.  54.)  makes  it  felony 
to  forge,  or  utter  and  publish  any  promissory  note  for  the  payment 
of  money.  This  was  undoubtedly  a  promissory  note  on  the  face 
of  it,  and  purported  to  be  good  and  valid.  Notes  of  this  descrip- 
tion are  not  absolutely  void,  for  they  may  be  collected  of  the  bank 
of  Vermont.  But  for  the  purposes  of  circulation  they  are  void  in 
this  state;  for  the  act  (sess.  30.  c.  173.)  declares,  that  "  no  person 
shall  give  or  receive,  in  payment  of  any  debt  or  demand  whatso- 
ever, or  in  any  way  offer  or  attempt  to  circulate  any  bank  bill, 
or  promissory  note  of  any  banking  company,  within  this  state  or 
elsewhere,  for  the  payment  of  money,  which  shall  be  for  less 
than  the  nominal  value  of  one  dollar;  and  every  person  oifend- 
ing  against  the  act,  shall  forfeit  and  pay  the  amount  or  value  ol' 
such  bank  bill  or  note,  with  the  costs  of  suit." 

It  cannot,  therefore,  be  a  felony,  to  utter  and  publish  in  this 
state  such  a  forged  bill;  because  no  person  can  be  defrauded,  as 
every  person  is  bound  to  know  that  it  is  unlawful  to  accept  in 
payment,  or  circulate,  such  a  bill.  The  fraudulent  intent  is  the 
gist  of  the  charge,  and  that  intent  cannot  be  inferred  from  utter- 
ing the  bill,  when  every  person  knows  that  it  is  unlawful  to  re 
eeive  it,  and  that  it  is  void  as  to  the  purposes  of  payment  and  circu- 
lation. The  opinion  of  all  the  judges  in  England,  in  Moffat's  case, 
(Leoc/i,  337,)  was,  that  the  forging  a  bill  of  exchange,  which  if 
real  could  not  have  been  valid  or  negotiable,  but  void  under  thi- 
statute,  was  not  a  capital  offence.  We  do  not  mean  to  say,  that  it 
•would  not  be  felony  to  forge  such  a  bill,  or  larceny  to  steal  it,  but 
only,  that  offering  it  for  circulation  is  not  felony ;  because  it  i* 
(It-flared  to  be  incapable  of  any  such  use. 

The  prisoner  has  been  convicted  of  possessing  the  forged  bill, 
with  intent  to  pass  it,  under  the  7th  section  of  the  act  of  the  8th 
of  April,  1808.  (Sess.  31.  c.  153.)  But  if  it  is  not  felony  to  utter 
it,  it  cannot  be  felony  to  possess  it  with  intent  to  utter  it.  The 
prisoner  was  discharged. 

A  man  may  be  guilty  of  forgery  by  making  an  instrument,  which   2  East,  i'.  c. 
is  the  subject  of  forgery,  with  a  fraudulent  intent,  in  the  name  of  a  9i7'  969' 
non-existing  person,  as  by  drawing  a  bill  of  exchange  with  ficti- 
tious names,  or  by  endorsing  it  in  the  name  of  a  fictitious  person, 
with  intent  to  defraud  :  as  where  a  man,  having  stolen  a  bill  of  ex- 
change, in  order  to  get  it  discounted  and  avoid  detection,  wrote 
the  name  of  a  fictitious  endorser  upon  it,  it  was  adjudged  forgery. 

He  who  writes  a  deed  in  another's  name,  and  seals  it  in  his  prc-   i  Hawk.c.ro. 
•utnce,  and  by  his  command,  is  not  guilty  of  forgery,  because  the  s>3> 
law  looks  on  this  as  the  other's  own  sealing. 

II.  Jls  to  what  writings  it  may  be  committed. 

The  counterfeiting   of  any  writing   with  a  fraudulent  intent,   sKasi.P.  c. 
whereby  another  may  le  prejudiced,  is  forgery  at  common  law.   8 


124  FORGEhi. 

Henee,  case's  not  coming  within  any  statute  provision  may,  noi- 
withstanding,  hr  proceeded  against  by  an  indictment  at  common 
law  ;  but  as  the  greater  number  of  instances  in  which  forgery  may 
be  committed  are  embraced  by  the  act,  and  as  the  heinousness 
of  the  offence  is  thereby  aggravated  from  a  simple  misdemeanour 
to  a  felony,  it  is  to  that  alone  that  the  attention  of  the  reader  will 
be  directed. 

"If  any  person  shall  falsely  make,  alter,  forge,  or  counterfeit, 
or  cause  or  procure  to  be  falsely  made,  altered,  forged  or  coun- 
terfeited, or  willingly  act  or  assist  in  the  false  making,  altering, 
forging  or  counterfeiting  any  record,  charter,  deed  or  writing  seal* 
ed,  will,  testament,  bond,  writing  obligatory,  bill  of  exchange,  pro- 
missory note  for  payment  of  money,  or  any  note  or  specialty  for 
the  payment  of  money,  and  expressed  to  be  payable  in  any  goods, 
wares,  or  merchandises,  endorsement  or  assignment  of  any  bill  of 
exchange  or  promissory  note  for  payment  of  money,  or  any  ac- 
quittance or  receipt,  either  for  money  or  goods,  or  any  acceptance 
of  any  bill  of  exchange,  or  the  number  or  principal  sum  of  any  ac- 
countable receipt  for  any  note,  bill,  or  other  security  for  payment 
of  money,  or  any  warrant  or  order  for  payment  of  money  or  deli- 
very of  goods,  whether  such  order  purports  to  be  the  order  of  the 
owner  of  the  goods  or  money  specified  therein,  or  of  some  per- 
son who  claims  an  interest  in  the  same,  or  of  any  other  person, 
with  intention  to  defraud  any  person,  or  body  politic  or  corporate 
whatsoever,  or  shall  utter  or  publish,  as  true,  any  false,  altered, 
forged,  or  counterfeited  record,  charter,  deed  or  writing  sealed, 
will,  testament,  bond,  writing  obligatory,  bill  of  exchange,  promis- 
sory note  for  payment  of  money,  or  any  note  or  specialty  for  the. 
payment  of  money,  and  expressed  to  be  payable  in  any  goods, 
wares  or  merchandises,  endorsement  or  assignment  of  any  bill  of 
exchange  or  promissory  note  for  payment  of  money,  acquittance 
or  receipt  either  for  money  or  goods,  or  any  acceptance  of  any  bill 
of  exchange,  or  the  number  or  principal  sum  of  any  accountable 
receipt  for  any  note,  bill,  or  other  security  for  the  payment  of  mo- 
ney, 01  any  warrant  or  order  for  the  payment  of  money  or  delivery 
of  goods,  whether  such  order  purports  to  be  the  order  of  the  own- 
er of  the  goods  or  money  specified  therein,  or  of  some  person 
who  claims  an  interest  in  the  same,  or  of  any  other  person,  with 
intention  to  defraud  any  person  or  body  politic  or  corporate  what- 
soever, knowing  the  same  to  be  false,  altered,  forged,  or  counter- 
feited, then  every  such  person,  being  thereof  convicted  according 
to  the  due  course  of  law.  shall  be  deemed  guilty  of  felony.  Stss. 
36.  c.  44.  s.  1 .  I  R.  L.  404-. 

"If  any  person  shall  forge  or  counterfeit,  or  be  aiding  or  assist- 
ing in  forging  or  counterfeiting,  any  certificate  or  endorsement  of 
the  acknowledgment  or  proof  of  any  deed  or  writing  made  by  any 
officer  or  other  person  duly  authorized  to  make  such  certificate 
or  endorsement,  by  any  law  of  this  state  now  or  hereafter  to  be 
made,  or  the  certificate  or  endorsement  of  the  recording  of  any 


FORGERY. 

3ced  or  writing  made  by  the  secretary  of  this«state,  er  hy  the 
clerk  of  any  county,  duly  authorized  to  make  such  certificate  or 
endorsement,  hy  any  law  of  this  state  now  or  hereafter  to  he 
made,  or  shall  knowingly  utter  any  such  forged  or  counterfeited 
certificate  or  endorsement  as  true,  and  he  thereof  convicted  by 
due  course  of  law,  shall  be  deemed  guilty  of  felony,  s.  '2, 

':  If  any  person  shall  counterfeit,  or  cause  or  procure  to  be 
counterfeited,  or  aid  or  assist  in  counterfeiting  any  certificate  or 
other  public  security  issued  or  to  be  issued  by  the  authority  of 
this  state  for  payment  of  money,  or  acknowledging  the  receipt  of 
money  or  goods,  or  any  bill  of  credit  heretofore  issued  by  or  un- 
der the  authority  of  the  legislature  of  this  state,  or  shall  alter  any 
such  certificate  or  bill  of  credit,  so  that  the  same  shall  appear  to 
be  of  greater  value  than  the  same  was  or  shall  be  issued  for,  or 
intended  to  pass  for,  hy  the  act  in  pursuance  of  which  the  same 
was  or  shall  be  issued,  or  shall  utter,  pass,  or  give  in  payment,  or 
offer  to  pass  or  give  in  payment,  or  procure  to  be  uttered,  passed, 
or  given  in  payment,  any  such  counterfeited  or  altered  rertiii- 
oate  or  bill  of  credit,  knowing  the  same  to  be  counterfeited  or  al- 
tered, then  every  such  person  being  thereof  convicted  by  duo 
course  of  law,  shall  be  deemed  guilty  of  felony,  s.  o. 

"  In  all  cases  v,  here  any  such  certificate  or  bill  of  credit  shall 
be  charged  to  have  been  altered,  and  it  shall  appear  to  have  been 
altered,  the  same  shall  be  presumed  to  have  been  altered  from  a 
less  to  a  greater  value,  sum,  or  denomination,  and  the  burden  of 
proving  that  the  certificate  or  bill  of  credit  charged  to  have  been 
altered  was  not  altered  from  a  less  to  a  greater  sum,  shall  bo  on 
the  defendant  charged  with  altering  the  same."  s.  4-. 

"  If  any  person  shall  sell  or  exchange,  or  oiler  for  sale  or  ex- 
change, or  wittingly  receive  any  forged  or  counterfeited  promis- 
sory note,  with  intention  to  have  the  same  uttered  or  passed  to 
defraud  any  person  or  body  politic  or  corporate,  thtn  every  such 
person,  being  thereof  convicted  by  due  course  of  law,  shall  br 
deemed  guilty  of  felony,  s.  7. 

"If  any  person  shall  make  or  engrave,  or  cause  or  procure  to 
be  made  or  engraved,  any  plate  for  forging  or  counterfeiting  any 
promissory  note  for  the  payment  of  money,  in  the  name  of  any 
person  or  body  politic  or  corporate,  then  every  such  person,  facing 
thereof  convicted  by  due  course  of  law,  shall  be  deemed  guilty  of 
felony,  s.  8. 

"  If  any  person  shall  have  in  his  possession,  or  receive  from  any 
olher  person,  any  forged  or  counterfeited  promissory  note  for  the 
payment  of  money,  with  intention  to  utter  or  pass  the  same,  or 
to  permit,  cause  or  procure  the  same  to  be  uttered  or  passed,  with 
intention  to  defraud  any  person  or  body  politic  or  corporate  what- 
soever, knowing  the  same  to  be  forged  or  counterfeited,  then 
every  such  person,  being  thereof  cdnvicted  according  to  the  due 
course  of  law,  shall  be  deemed  guilty  of  felony,  s.  y. 

"  If  any  person  shall  have  or  keep  in  his  custody  or  possession, 
aoy  blank  er  unfioished  nof.e,  made  In  the  form  or  similitude  of 


FORGERY. 

• 

any  promissory  note  for  the  payment  of  money,  made  to  be  issued 
by  any  incorporated  bank  in  this  state,  or  any  other  of  the  United 
States,  with  intention  to  fill  up  and  complete  such  blank  and  un- 
finished note,  or  to  permit,  cause,  or  procure  the  same  to  be  filled 
up  and  completed,  in  order  to  utter  or  pass  the  same,  or  to  per- 
mit, cause,  or  procure  the  same  to  be  uttered  or  passed,  to  de- 
fraud any  person  or  body  politic  or  corporate  whatsoever,  the 
person  in  whose  custody  or  possession  such  blank  or  unfinished 
note  shall  be  found,  being  thereof  convicted  according  to  the  due 
course  of  law,  shall  be  deemed-guilty  of  felony,  s.  10. 

"  If  any  person  shall  have  or  keep  in  his  custody  or  possession, 
any  plate  for  forging  or  counterfeiting  any  promissory  note  for 
llie  payment  of  money,  in  the  form  and  similitude  of  any  pro- 
missory note  issued  by  any  of  the  banks  aforesaid,  with  intention 
to  forge  or  counterfeit,  or  assist  in  forging  or  counterfeiting,  or  to 
permit,  cause,  or  procure  to  be  counterfeited,  any  promissory  note, 
issued  by  any  of  the  aforesaid  banks,  the  person  in  whose  posses- 
sion or  custody  such  plate  shall  be  found,  being  thereof  convicted 
according  to  the  due  course  of  law,  shall  be  deemed  guilty  of 
felony."  s.  1  1. 

Forging  the  licence  of  a  hawker  or  pedlar,  is  felony,  by  the 
act.  sess.  27.  c.  90.  s.  4.  Vide  HAWKERS  and  PEDLARS. 

Counterfeiting  a  certificate  or  permit  to  practice  physic,  and 
being  thereof  convicted  in  the  supreme  court,  circuit,  or  court  of 
genera!  sessions  of  the  peace,  is  punishable  by  fine  not  exceeding 
•me  hundred  dollars,  and  imprisonment;  and  the  offender,  if  a 
practising  physician  or  surgeon,  shall  never  thereafter  practise 
within  the  state.  Sess.  24-.  c.  137.  s.  6. 

The  following  cases  on  the  act  to  prevent  forgery  have  been 
decided  in  the  supreme  court^of  this  state  : 

The  People         The  prisoner  was  indicted  and  convicted  for  forging  the  follow- 

5Joh'us?kcp.  i°S  order:  ~\Ir.  S.  sir,  let  the  bearer  trade  thirteen  dollars  and 

twenty-five   cents,  and  you  will  much   oblige,   &c.  S.   L.     The 

court  held  this   to  be  an   order  for  the  delivery  of  goods  within 

the  statute. 

The  People          The  prisoner  was  indicted  and  convicted  for  forging  the  fol- 
5  John^kep.  l°wng  note  ;  Due  J.  F.  one  dollar  on  settlement  this  day,  D.  K. 
Per  curiam.   This  is  a  note  for  payment  of  money  within  the  sta- 
tute.    A  similar  question  arose  in  the  case  of  Mathew  Mackcy, 
before  this  court,  in  August  term,  1 806.     He  was  convicted  for 
forging  a  paper  in  the  following  words  :  "  Due  from  B.  S.  to  M. 
M.  the  sum  of  one  pound,  on  the  first  day  of  the  month  called 
•  April,    1801.     B.  S."  and  the  court  decided  that  it  was  a  note 

within  the  statute. 
The  People          A  check  on  a  bank  is  not  a  mil  of  exchange  within  the  act,  but 

r.  Howcll,          . 

<•  Johns.  Rep.  is  an  order  Jor  me  payment  of  money. 

286. 

III.  Publishing  or  uttering. 
«  /.'   '  To  pronounce  or  publish,  says  Lord  Coke,  is  when  one  by 


GAMING  AND  HORSE  RACING.  ];V/ 

words  or  writing  pronounceth  or  publisheth  the  instrument  to  ziwt.  in. 
any  other  as  true.  It  extends,  no  doubt,  to  every  other  manner  of 
exhibiting  it  as  a  true  instrument.  But  in  order  to  constitute  such 
an  offence,  it  must  be  done  with  knowledge  of  the  forgery  ; 
which  knowledge  may  come  by  the  relation  of  another  as  well  as  by 
the  party's  own  observation.  If,  says  Lord  Coke,  A.  inform  B.  that 
such  a  deed  is  forged,  and  yet  B.  will  publish  it ;  if  the  deed  be 
false,  this  is  within  the  words,  "  knowing  the  same  to  be  forged/' 

IV.  Punishment. 

The  offences  specified  in  the  second  and  third  sections  of  the 
act  "  to  prevent  forgery  and  counterfeiting,"  (see  ante  II.)  and  ac- 
cessories before  the  fact,  are  punishable  with  imprisonment  for 
life  in  the  state  prison.  Sess.  36.  c.  29.  s.  3.  I  R.  L.  408. 

Every  person  convicted  of  forging,  or  of  willingly  acting  or  as- 
sisting in  forging  any  record  or  charter,  or  any  deed  or  will,  affect- 
ing the  title  to  real  estate,  or  any  promissory  negotiable  note,  or 
bill  of  exchange,  or  endorsement  or  assignment  thereof,  with  inten- 
tion to  defraud  any  person,  or  body  politic  or  corporate,  or  oi' 
uttering  and  publishing  as  true,  any  forged  record,  fee.  knowing; 
the  same  to  be  forged,  and  the  accessories  before  the  fact,  shall 
be  punished  with  imprisonment  for  life  in  the  state  prison,  or  for 
such  term  as. the  court  having  cognisance  of  the  offence  may  i" 
their  discretion  deem  proper,  s.  4. 

Offences  against  the  first  section  of  the  act  to  prevent  forgery,- 
fcc.  the  punishment  whereof  is  not  provided  for  in^the  last  pre- 
ceding section,  and  accessories  before  the  fact,  are  punishable 
with  imprisonment  in  the  state  prison  for  any  term  not  more  thau 
fourteen  years,  s.  5. 

Offences  specified  in  the  seventh,  eighth,  ninth,  tenth  and  ele- 
venth sections  of  the  said  act,  are  punishable  with  imprisonment  in 
the  state  prison  for  life,  or  for  such  term  (not  less  than  seven 
years)  as  the  court  having  cognisance  of  the  offence  shall  in  their 
discretion  deem  proper,  s.  6. 


GAMING  AND  HORSE  RACING. 

Persons  playing  at  any  game,  and  winning  by  fraud  in  playing,  cr 
in  betting  on  such  as  do  play,  at  one  sitting  of  one  or  more  per- 
sons, more  than  twenty-five  dollars  in  money  or  other  valuable 
things,  shall  forfeit  five  times  the  value  of  the  same,  be  deemed 
infamous,  and  be  imprisoned  for  six  calendar  months  ;  the  one 
moiety  of  which  penalty  shall  be  paid  to  the  overseers  of  the 
poor  of  the  town  in  which  the  offence  was  committed,  and  the 
other  to  the  plaintiff.  Sess.  24-.  c.  49.  s,  5.  1  R.  L.  153. 

Any  person  winning  or  losing  at  play,  or  by  betting  at  any  time, 


UAMINU  AND  HORSE  RACING. 

the  sum  or  value  of  twenty-live  dollars,  or  upwards,  or  of  fifty  dollars 
within  twenty-four  hours,  may  he  indicted  within  a  year  after  the 
offence  committed,  and  on  conviction  shall  be  fined  five  times  the 
value  of  the  sum  so  lost  or  won  ;  which  sum,  after  allowing  reason- 
able charges  to  the  prosecutors  and  witnesses,  shall  be  paid  to  the 
overseers  of  the  poor  of  the  town  in  which  the  offence  was  com- 
mitted, s.  6. 

If  any  offender  shall  discover  another  person  offending,  so  that 
he  be  convicted,  he  shall  be  discharged  from  the  penalties  of  his 
offence,  if  he  has  not  been  before  convicted  thereof,  and  shall  be 
admitted  as  an  evidence  to  prove  the  same.  s.  7. 

All  persons  not  parties  in  the  cause  may  be  witnesses  touching 
any  offence  against  this  act.  s.  8. 

"  It  shall  be  lawful  for  any  two  or  more  justices  of  the  peace, 
in  any  city  or  county  within  this  state,  to  cause  to  come  before 
them  every  person  within  their  respective  cities  or  counties, 
whom  they  shall  have  just  cause  to  suspect  to  have  no  visible 
estate,  profession,  or  calling,  to  maintain  themselves  by,  but  who 
do,  for  the  most  part,  support  themselves  by  gaining  ;  and  if  every 
such  person  shall  not  make  it  appear  to  such  justices,  that  the 
principal  part  of  his  expenses  are  not  maintained  by  gaming,  then 
such  justices  shall  require  of  him  sufficient  sureties  for  his  good 
behaviour  for  the  space  of  twelve  months  ;  and  in  default  of  his 
finding  such  sureties,  to  commit  him  to  the  common  gaol  of  the  city 
or  county,  there  to  remain  until  he  shall  find  such  sureties."  s.  9. 

"  If  any  such  person  so  linding  such  sureties,  shall  during  the 
time  for  which  he  shall  be  so  bound  to  good  behaviour,  at  any 
one  time,  or  sitting,  play  or  bet  for  any  money  or  other  thing, 
exceeding  in  the  whole  the  sura  or  value  of  two  dollars  and  fifty 
cents,  then  such  playing  shall  be  deemed  to  be  a  breach  of  his 
good  behaviour,  and  a  forfeiture  of  the  recognisance  given  for  the 
same."1*  s.  10. 

"  AH  racing  and  running,  pacing  and  trotting  of  horses,  mares, 
or  geldings,  for  any  bet  or  stakes,  in  money,  goods,  or  chattels,  or 
other  valuable  thing,  shall  be  and  hereby  are  declared  to  be  com- 
mon and  public  nuisances,  and  offences  against  this  state ;  and 
the  authors,  betters,  stakers,  stakeholders,  parties,  contrivers,  and 
abettors  thereof,  shall  be  proceeded  against,  and  punished  by  fine 
or  imprisonment,  at  the  discretion  of  any  court  having  cognisance 
thereof;  and  all  public  officers  concerned  in  the  administration 
of  justice,  are  hereby  strictly  enjoined  to  cause  this  act  to  be 
faithfully  executed."  ,  Sess.  25.  c.  44.  s.  I.  1  R.  L.  222. 

The  owner  of  every  horse  used  in  racing:,  on  which  any  bet  is 
laid  or  depending,  shall  forfeit  for  every  race  so  run,  the  value  of 


*  This  act  avoids;  all  securities  given  for  money  won  by  gaming  ;  and 
gives  an  action  to  a  loser  to  the  amount  of  twenty-fr  e  dollars,  to  recorer 
tack  the  same,  and  in  hi*  default,  to  a  common  informer. 


HAWKERS  AND  PEDLARS.  129 

such  horse  ;  and  every  person  betting  on  a  race,  shall  forfeit  the 
amount  of  the  wager  ;  which  penalties  may  he  recovered  by 
action  of  debt,  bill,  plaint,  or  information  ;  one  half  to  the  informer, 
the  other  half  to  the  overseers  of  the  poor  of  the  place  where 
tho  race  shall  be  run,  or  the  bet  made.  s.  2,  3. 

"  If  any  person  or  persons  shall  contribute  or  collect,  or  solicit 
any  other  to  contribute  or  collect,  any  money,  goods,  or  chattels, 
to  make  up  a  purse,  plate,  or  other  thing  or  things,  to  be  run  for 
by  any  horse,  marc,  or  gelding,  at  any  place  in  this  state,  such 
person  or  persons,  so  offending,  shall  forfeit  the  sum  of  twenty- 
five  dollars  for  each  and  every  offence,  to  be  recovered  and  ap- 
plied as  aforesaid."  s.  4. 

"  All  racing  or  running  of  horses,  mares,  or  geldings,  during 
the  sitting  of  any  court,  and  within  one  half  mile  thereof,  whe- 
ther the  same  be  for  any  bet  or  wager  or  not,  shall  be  deemed 
and  adjudged  a  misdemeanour,  and  the  parties  concerned  therein 
shall  be  punished  accordingly."  s.  6. 

"  Every  person  who  shall  raffle  for  any  sum  of  money,  goods, 
or  chattels,  shall  for  every  such  offence  be  liable  to  pay  the  sum 
of  two  dollars,  to  be  recovered  before  any  court  having  cogni- 
sance thereof,  with  costs  of  suit;  and  every  person  who  shall  set 
up  any  money,  goods,  or  chattels  to  be  raffled  for,  shall  be  liable 
to  pay  the  sum  of  two  dollars  to  the  use  of  the  poor  of  the 
town  in  which  any  such  offence  shall  be  committed  ;  and  it  shall  be 
the  duty  of  the  overseers  of  the  poor  of  such  town,  and  they  are 
hereby  authorized,  to  prosecute  in  their  own  name  therefor."  s.  7. 

An  innkeeper,  permitting  gaming  in  his  house,  is  punishable  by 
fine  and  imprisonment,  his  licence  may  he  suppressed,  and  his 
recognisance  will  be  forfeited.  See  INNS  and  TAVERXS,  II.  III. 


HAWKERS  AND  PEDLARS. 

Every  hawker,  pedlar,  and  petty  chapman,  or  any  other  trading 
person  going  from  place  to  place,  and  carrying  to  sell,  or  exposing 
to  sale,  any  goods,  wares,  or  merchandise,  of  the  growth,  pro- 
duce, or  manufacture  of  any  foreign  country,  without  the  United 
States,  are  required  annually  to  pay  certain  duties,  and  take  a 
license  from  the  secretary  of  state,  permitting  them  to  travel  with 
their  wares  for  sale,  for  one  year,  either  on  foot,  or  with  one  or 
more  horse  or  horses,  or  other  beasts  bearing  or  drawing  bur- 
thens, or  with  a  carriage  drawn  by  one  or  more  horse  or  horses, 
or  other  beasts,  or  in  a  boat  or  boats,  navigating  the  waters  of  this 
state,  according  to  a  previous  notification,  to  be  delivered  to  the 
said  secretary.  Sens.  3(j.  c.  9.  s.  1,2.  2  R.  L.  223. 

A  certified  list  of  the  names  of  persons  to  whom  licenses  have 
boon  granted,  shall* very  year  be  transmitted  to  the  ?f  vrral  county 

r  n 


130  HAWKERS  AND  PEDLARS. 

clerks,  who  shall  send   a  transcript  thereof  to  every  judge,  as- 
sistant justice,  and  justice  of  the  peace  in  the  county,     s.  3. 

"  When,  and  as  often  as  any  hawker,  pedlar,  and  petty  chap- 
man, shall  be  found  trading  or  disposing  of  goods  as  aforesaid, 
without  or  contrary  to  such  license,  such  person  shall,  for  every 
such  offence,  forfeit  and  pay  the  sum  of  twenty-five  dollars,  to  be 
recovered  on  the  complaint  of  any  one  who  will  sue  for  the  same 
before  any  justice  of  the  peace  within  this  state,  in  a  summary 
way.  with  costs  of  suit,  one  moiety  whereof,  when  recovered, 
shall  be  paid  to  the  informer,  and  the  other  moiety  to  the  over- 
seers of  the  poor  of  the  town  where  such  offender  shall  be  pro- 
secuted, for  the  use  of  the  poor  thereof:  And  if  any  offend*  r 
who  shall  he  so  trading,  on  demand  made  by  any  justice  of  the 
peace,  sheriff,  constable,  or  any  other  person  within  this  state, 
shall  refuse  to  produce  or  show  his  or  her  license  therefor,  he  or 
she  shall  forfeit  the  sum  of  ten  dollars,  to  be  paid  to  the  overseers 
of  the  poor  where  such  demand  shall  be  made,  for  the  use  of  tin; 
poor  of  the  towu  ;  and  on  neglect  or  refusal  to  pay  the  same,  the 
justice  before  whom  such  offender  shall  be  convicted,  shall,  by 
warrant  under  his  hand  and  seal,  commit  such  offender  to  the 
gaol  of  the  county  where  the  offence  shall  be  committed,  for  the 
term  of  one  month."  s.  4. 

"  If  any  person  or  persons  shall  forge  or  counterfeit  any  such 
license,  or  travel  with  any  forged  or  counterfeited  license,  for  the 
purpose  aforesaid,  such  person  shall  be  deemed  guilty  of  forgery, 
and  being  convicted  thereof,  shall  be  punished  accordingly."  s.  5. 

"  It  shall  be  lawful  for  any  person  to  apprehend  and  detain 
any  such  hawker,  pedlar,  or  petty  chapman,  or  other  trading 
person  as  aforesaid,  who  shall  be  found  trading  without  license, 
contrary  to  the  true  intent  and  meaning  of  this  act;  and  him  or 
her,  so  apprehended,  to  bring  before  any  justice  of  the  peace  of 
the  county  or  town  where  such  offender  shall  be,  which  justice  is 
hereby  authorized  and  directed,  either  upon  the  confession  of  the 
party  offending,  or  due  proof  of  one  or  more  credible  witness  or 
witnesses,  upon  oath,  that  the  person  so  brought  before  him  had 
so  traded  as  aforesaid  ;  and  if  no  such  license  shall  be  produced  by 
such  offender,  such  justice  shall,  for  every  such  offence,  by  war- 
rant under  his  hand  and  seal,  directed  to  any  constable  of  the 
town  wherein  such  conviction  shall  be  had,  cause  the.  sum  of 
twenty-five  dollars,  with  costs,  to  be  forthwith  levied  by  distress 
and  safe,  at  public  vendue,  of  the  offender's  goods,  wares,  and 
inerchamlise-,  which  costs,  not  exceeding  five  dollars,  shall  be 
ascertained  and  allowed  by  such  justice."  s.  7. 

"  On  ix,'u?a'  to  produce  such  lic*ensc  to  any  person  demanding 
t'lf1  same,  and  although  it  be  afterwards  produced  to  the  justice 
l»efore  whom  the  offender  shall  be  brought,  such  offender,  for  such 
refusal,  shall  forfeit  and  pay  to  the  person  demanding  the  same, 
'•ic  fiim  of  five  dollars,  to  be  levied  anJ  collected,  with  cv 
manner  aforesaid.  Provided  always,  that  all  suits  to  be  brought 


HIGHWAYS. 

for  any  offence  against  this  act,  shall  be  brought  within  sixty  days 
after  the  offence  shall  be  committed.  s.  8. 

"  In  all  cases  of  prosecution  for  any  of  the  offences  herein 
before  mentioned,  and  wherein  the  defendant  shall  refuse  to  show 
his  license,  or  to  make  known  his  name,  to  such  person  as  will 
prosecute,  previous  to  the  commencement  of  such  action,  th<' 
plaintiff  shall  not  be  liable  to  pay  to  such  defendant  any  costs  for 
the  misnaming  of  such  defendant ;  nor  shall  the  said  plaintiff', 
constable,  nor  the  justice  before  whom  any  such  offender,  aa 
aforesaid,  shall  have  been  tried,  be  liable  to  any  action  for  falsely 
imprisoning  such  defendant  as  aforesaid."  s.  Q. 

Any  person  sued  for  putting  this  act  in  execution,  may  plead 
the  general  issue,  and  give  the  special  matter  in  evidence  ;  and  if 
the  plaintiff  become  nonsuit,  discontinue,  or  judgment  pass  against 
him,  the  defendant  shall  recover  treble  costs,  s.  6. 


HIGHWAYS. 

Under  this  title,  the  two  following  heads,  as  mak'1    :  parts  of 
the  same  subject  matter,  will  be  considered  : 

A.  HIGHWAYS. 

B.  TURNPIKES. 


A.  HIGHWAYS. 

I.   Whai  are  highways. 
II.  How  laid  out  and  repaired. 

III.  Roads  through  improved  land. 

IV.  Private  roads. 
V.  Appeals. 

VI.  Assessment  and  commutation. 

VII.  Penalties  for  neglect,  £/c.  in  persons  assessed. 

VIII.  Duties  of  overseers,  and  penalties  for  neglect, 

IX.  Obstructing  and  encroaching  upon  highways. 

X.  Gates. 

XI.  Mile  boards  and  guide  posts. 

XII.  Bridges. 

XIII.  Carriages  meeting. 

XIV.  Commissioners,  how  to  account. 

I.  What  are  highways. 

By  the   "  act  to  regulate  highways,"  sess.  36.  c.  33.  (2  R.  L. 
ro)  s.  24-,  it  is  provided,  that  "  all  public  highways  heretofore 


132  HIGHWAYS. 

laid  out  and  allowed  by  any  law  of  this  state,  and  now  in  use 
within  the  counties  subject  to  this  act.'1  (i.  e.  ;ill  the  counties  ia 
the  state,  except  New-York,  Suffolk,  Queens,  Kings  and  Ilich- 
mond,  see  sect.  I.)  "  and  of  which  a  record  shall  have  been  made 
in  the  office  of  the  clerk  of  the  county  or  town,  shall  be  taken  and 
deemed  as  public  highways,  and  continue  such,  unless  altered  in 
conformity  to  the  provisions  contained  in  this  act." 

But  "  where  any  roads  have  been  used  as  public  highways 
for  twenty  years,  or  more,  next  preceding  the  twenty-first  day  of 
March,  one  thousand  seven  hundred  and  ninety-seven,  the  same 
shall  be  taken  and  deemed,  as  public  highways,  unless  they  shall 
be  altered"  in  the  manner  provided  by  this  act. 

oaiatian  v.  \  roxd  used  as  a  public  highway,  for  twenty-seven  years  next 
7Johns.Rep.  preceding  the  21st  March,  1797,  becomes  a  public  highway, 
1061  though  not  recorded  ;  and  it  does  not  cease  to  be  a  public  high- 

way, though  originally  leading  to  a  dock  and  landing,  or  ferry, 
and  such  ferry  has  been  changed,  and  though  some  part  of  the 
way  has  been  appropriated,  and  built  upon,  if  the  passage  con- 
tinues open  to  the  same  dock  and  landing. 

Cro.  car.  3*6.  1  f  passengers  have  used,  timeout  of  mind,  when  the  roads  are 
bad,  to  go  by  outlets  on  the  land  adjoining  to  a  highway,  in  an 
open  field,  such  outlet  are  parcels  of  the  highway;  and  there- 
fore, if  they  be  sown  with  corn,  and  the  track  is  foundrous,  pas- 
sengers may  go  upon  the  corn. 

3  Bac.  Abr.  The  fee  of  a  highway  is  in  the  owner  of  the  soil,  or  of  the  lands 
2 Johns. Rep.  adjacent,  and  he  is  entitled  to  all  the  profits  of  it,  as  trees,  fcc. 
2i7-  Also  the.  lord  or  owner  of  the  soil  shall  have  an  action  of  trespass 

for  digging  the  ground. 

"  If  any  public  highway,  already  laid  out,  or  hereafter  to  be 
laid  out,  shall  not  be  opened  and  worked -within  six  years  after 
the  passing  of  this  act,  (viz.  March  19,  1813.)  or  from  the  time  of 
its  being  so  laid  out,  the  same  shall  cease  to  be  a  public  highway, 
or  road,  for  any  use,  intent,  or  purpose  whatsoever."  s.  2j. 

II.  How  laid  out  and  repaired. 

"  All  public  roads  to  be  laid  out  by  the  commissioners  of  any 
town,  shall  not  be  less  than  four  rods  wide."  s.  2'2. 

"  It  shall  be  the  duty  of  the  commissioners  to  order  the  over- 
seers of  highways  to  open  all  roads,  to  the  width  of  two  rods  at 
least,  which  they  shall  judge  to  have  been  used  as  public  high- 
ways for  twenty  years  preceding  the  said  21st  day  of  March, 
1797."  s.  24. 

"  It  shall  be  the  duty,  of  the  commissioners  of  highways,  in 
the  several  towns  of  this  state,  except  in  the  city  and  county  of 
New-York,  the  counties  of  Suffolk,  Queens,  Kings,  and  Rich- 
mond, to  give  directions  relative  to  the  repairing  of  the  roads 
and  bridges  within  the  towns  for  which  they  are  respectively  ap- 
pointed, to  regulate  the  roads  already  laid  out,  and  to  alter  such 


HIGHWAYS.  ]33 

;  y,  or  a  majority  of  them,  shall  conceive  inconvenient;  to 
cause  such  of  the  roads,  as  are  notalready  described  and  recorded, 
to  be  ascertained,  described,  and  entered  of  record,  in  the  town 
.•lerk's  office,  to  cause  to  he  kept  in  repair  the  highways  and 
bridges  erected,  or  which  may  be  erected,  over  streams  inler- 
ig  highways,  to  require,  the  overseers,  from  time  to  time, 
and  as  often  as  they  shall  deem  necessary,  to  warn  the  people  as- 
sessed to  work  on  highways,  to  come  and  work  thereon,  with  such 
implements,  carriages,  cattle,  and  sleds,  as  the  said  commissioners, 
or  any  one  of  them,  shall  direct,  and  shall  have  full  power  and 
lawful  authority,  under  the  restrictions  herein  after  mentioned, 
to  lay  out,  on  actual  survey,  such  new  roads  in  the  several  towns 
as  they  may  deem  necessary  and  proper,  and  to  discontinue 
such  old  roads  and  highways  as  shall  appear  to  them,  on  the  oaths 
of  twelve  freeholders  of  the  same  town,  to  have  become  useless 
and  unnecessary."  s.  1. 

Trespass  quart  clausumfrcgit ;  the  defence  w  as,  that  the  locus  ^'J^b'ii'r 
!n  quo  was  a  public  highway.  THOMPSON,  J.  delivered  the  opinion  iJohni<Bep 
of  the  court.  The  question  is,  whether  the  locus  in  quo  was  a  424< 
public  highway  at  the  time  of  the  alleged  trespass.  The  pro- 
ceedings of  the  commissioners  of  highways,  in  the  year  1784,  in 
relation  to  this  road,  were  not  entered  on  the  town  record  until 
the  year  1790,  nor  does  it  appear  by  what  authority  the  record 
was  then  made.  This,  perhaps,  ought  not  to  he,  considered  a 
record  of  a  road,  made  conformable  to  all  the  directions  of  the 
then  statute.  It  appears,  however,  that  in  fact  this  road  had  been 
used  as  a  public  highway  for  about  twelve  years,  which  is  primu 
facie  evidence  that  it  was  opened  by  authority,  and  to  be  deemed 
a  public  highway,  within  the  cases  contemplated  in  the  first  sec- 
tion of  the  act  of  1801,  for  regulating  highways.  This  section 
authorizes  the  commissioners,  in  their  respective  towns,  to  cause 
such  of  the  roads  as  are  not  already  described  and  recorded,  to 
be  ascertained,  described,  and  entered  of  record.  This  authority 
necessarily  implies  and  presupposes  an  omission  of  some  of  the 
requisites  to  the  establishment  of  a  public  highway.  The  roads 
referred  to  must  be  such  as  were  in  use,  as  public  highways,  at. 
the  time  of  the  passing  of  the  act.  And  the  one  now  in  question 
falls  within  that  description.  The  commissioners,  in  1805,  had 
therefore  authority  to  ascertain,  describe,  and  enter  on  record, 
this  road  ;  and  this  having  been  done,  before  the  alleged  trespass, 
the  /ocus  in  quo  was  duly  constituted  a  public  highway,  which 
affords  a  complete  justification  for  the  defendant. 

The  commissioners  of  the  respective  towns,  or  the  major  part 
of  them,  shall  annually,  at  least  ten  days  before  the  annual  town 
meeting,  if  they  shall  judge  the  same  necessary,  by  writing  under 
their  hands,  to  be  lodged  with  the  town  clerk,  and  by  him  to  be 
entered  in  the  town  book,  divide  their  respective  towns  into  as 
many  road  districts  as  they  shall  judge  convenient,  and  assign  to 
each  of  the  said  road  districts,  sv.ch  <>i  the  inhabitants  liable  to 


HIGHWAYS. 

work  on  highways  as  they  shall  think  proper,  having  regard  t» 
proximity  of  residence  as  much  as  may  be.    s.  2. 

When  the  commissioners  of  any  town  shall  disagree  with  the 
commissioners  of  any  other  town  in  the  same  county,  relating  to 
the  laying  out  of  a  new  road,  or  the  alteration  of  an  old  road,  ex- 
tending into  both  towns;  or  when  the  commissioners  of  a  town 
in  one  county  shall  disagree  with  the  commissioners  of  a  town 
in  another  county,  relative  to  laying  out  a  new  road,  or  altering 
an  old  road,  which  shall  extend  into  both  counties,  the  commis- 
sioners of  both  towns  shall  meet  together,  at  Ihe  request  of  either 
disagreeing  commissioners,  and  make  their  determination  upon 
such  subject  of  disagreement,  s.  18. 

Whenever  it  shall  be  necessary  to  have  a  highway  upon  the 
line  between  two  towns,  such  highway  shall  be  laid  out  by  two  or 
more  of  the  commissioners  of  highways  of  each  of  the  said  towns, 
so  that  such  line  shall  be  the  centre  or  middle  thereof;  and  it 
shall  be  the  duty  of  the  same  commissioners,  when  they  lay  out 
such  highway,  to  divide  it  into  two  road  districts,  in  such  manner 
that  the  labour  and  expense  of  opening,  working,  and  keeping  in 
repair  the  road  through  each  of  the  said  districts,  may  be  equal, 
as  near  as  may  be,  and  to  allot  one  of  the  said  districts  to  each  of 
the  said  towns,  which  shall  be  considered  as  wholly  belonging  to 
the  town  to  which  it  shall  be  so  allotted,  for  the  purpose  of  open- 
ing and  improving  the  said  road,  and  for  keeping  it  in  repair;  and 
the  commissioners  shall  cause  the  said  highway,  and  the  said 
partition  and  allotment  thereof,  to  be  recorded  in  the  office  of  the 
town  clerk  in  each  of  the  respective  towns;  and  all  highways, 
heretofore  laid  out  upon  the  line  between  any  two  towns,  shall  be 
divided,  allotted,  recorded,  and  kept  in  repair,  in  the  manner  above 
directed,  s.  19. 

All  trees,  standing  or  lying  on  any  land  over  which  any  public 
highways  shall  be  laid  out,  shall  be  for  the  proper  use  of  the  owner 
or  occupant  of  such  land,  except  such  of  them  as  may  be  requisite 
to  make  or  repair  the  highways  or  bridges  OH  the  same  land.  s.  28. 

Every  person  owning  lands  adjoining  public  highways,  which 
shall  not  be  less  than  three  rods  wide,  may  plant  trees  on 
the  side  or  sides  of  such  highways  contiguous  to  his  said  land, 
which  trees  shall  be  set  in  regular  rows,  at  a  distance  of  at  least 
six  feet  from  each  other ;  and  if  any  person  whatsoever  shall  cut 
down,  injure,  or  destroy  trees  so  planted,  and  set  out  as  aforesaid, 
or  that  have  been  heretofore  so  planted  he  shall  be  liable  to  an 
action  of  trespass,  at  the  suit  of  the  party  owning  the  land  conti- 
guous to  such  trees,  s.  29. 

The  town  clerk  shall,  whenever  the  order  of  the  commissioners 
for  laying  out,  altering,  or  discontinuing  a  road,  shall  be  recorded 
by  him,  set  up  a  copy  of  such  order  on  the  door  of  the  house  where 
the  town  meeting  is  usually  held.  s.  40. 

Each  commissioner  shall  be  allowed  one  dollar  per  day  for 
every  day  that  he  is  employed  in  executing  the  duties  of  his  office, 


HIGHWAYS. 

and  his  accounts  shall  be  audited  and  paid  as  other  town  officers 
are  paid.    s.  35. 

III.  Roads  through  improved  lands. 

It  shall  not  be  lawful  for  any  commissioners  of  highways  to  lay 
out  any  road  through  improved  or  cultivated  land,  without  the 
consent  of  the  occupant  or  owner  thereof,'*  unless  upon  the  appli- 
cation of  twelve  respectable  freeholders  of  the  town  in  which  such 
road  shall  be  laid  out,  certifying  upon  oath  that  such  road  is  ne- 
cessary and  proper;  nor  through  any  orchard  or  garden,  without 
the  consent  of  the  owner  or  owners  thereof,  if  such  orchard  shall 
be  of  the  growth  of  at  least  four  years,  or  such  garden  shall  have 
Cultivated  as  such  at  least  four  years  before  such  highway  or 
road  shall  be  laid  out. 

And  if  any  road  shall  be  laid  out  through  enclosed  or  improved 
lands,  the  owner  shull  be  paid  such  damages  as  he  may  sustain  by 
reason  thereof ;  which  damages  shall  be  determined  and  assessed 
by  two  justices  of  the  peace,  and  by  the  oath  of  twelve  reputa- 
ble freeholders,  not  having  an  interest  in  the  land  so  to  be  laid  out 
into  a  highway,  or  by  three  commissioners,  to  be  appointed  by  a 
judge  of  the  court  of  common  pleas  of  the  county  in  which  such 
land  may  be  situated,  whose  duty  it  shall  be  to  appoint  the  same 
when  thereunto  required. 

And  if  the  said  occupant  shall  elect  to  have  his  damages  assess- 
ed by  two  justices  of  the  peace  and  a  jury  as  aforesaid,  the  said 
freeholders  shall  be  summoned,  by  virtue  of  a  warrant  to  be  issued 
by  the  said  two  justices,  to  some  constable  of  the  town  or  county 
in  which  such  road  or  highway  shall  be  laid  out  as  aforesaid,  who 
shall  neither  be  interested  in  the  land  through  which  the  said  road 
is  laid  out,  nor  in  anywise  akin  to  the  owners  thereof. 

And  when  any  road  within  any  town  shall  be  laid  out  at  the  re- 
quest of  twelve  reputable  freeholders,  as  a  public  highway,  the 
whole  of  the  damages,  together  with  the  charges,  of  the  commis- 
sioners, justices  and  freeholders,  and  summoning  the  jury,  shall  be 
presented  to  the  board  of  supervisors  of  the  county,  who  shall  cause 
the  same  to  be  levied  as  a  town  charge,  and,  when  collected, 
to  be  paid  to  the  commissioners,  who  shall  pay  the  owner  the 
sum  assessed  to  him,  and  appropriate  the  residue  to  satisfy  the 
costs,  s.  16. 

Whore  any  road  shall  run  through  the  tancls  of  any  person,  or 
along  the  boundaries  thereof,  in  whole  or  in  part,  and  the  same 
shall  become  unnecessary,  or  be  discontinued  by  reason  of  some 
other  road  to  be  established  and  laid  out  by  virtue  of  this  act 


*  A  special  power,  granted  by  statute,  affecting  the  property  of  indivi- 
duals, ought  to  be  strictly  pm-siied,  and  appear  to  be  so  pursued  on  the 
face  of  the  proceeding.  Gilbert  v,  Columbia  Ticnzlke  Compani;.  S 
Johns.  Cases.  107. 


through  the  lands  of  the  same  person,  the  jurors  or  COL,. 
making  the  assessment,  shall  take  into  consideration  the  value  of 
such  road  so  discontinued  or  hecome  unnecessary,  and  the  bene- 
fit resulting  to  such  person  by  reason  of  such  discontinuance,  and 
make  deduction  from  the  amount  of  such  assessment  accordingly, 
and  the  balance,  and  no  more,  shall  be  the  sum  to  be  assessed  to  be. 
paid  for  the  opening  and  laying  out  such  new  road;  and  thereupon 
ii  shall  he  lawful  for  the  owner  of  the  land  to  enclose  so  much  of 
tiie  road  so  discontinued  or  become  unnecessary,  as  shall  run 
through  his  land  along  the  boundaries  thereof,  s.  17. 

If  the  owner  or  occupant  shall  have  appealed' from  the  deci- 
sion of  the  commissioners,  and  whose  doing  shall  have  been  con- 
firmed, or  in  case  no  appeal  shall  have  been  made  within  the  time 
limited  by  law,  he  shall,  within  thirty  days  thereafter,  make  his 
election  as  to  the  mode  or  manner  in  which  he  will  elect  to  have 
his  damages  assessed  ;  and  if  he  shall  elect  to  have  his  damages 
assessed  by  the  commissioners  to  be  appointed  by  a  judge  of  the 
common  pleas,  it  shall  be  his  duty  to  give  notice  of  the  lime  ol' 
meeting  of  such  commissioners,  to  make  such  assessment,  to  the 
supervisor  of  the  town  in  which  such  assessment  is  to  be  made, 
whose  duty  it  shall  be  to  attend,  and  any  assessment  made  by  such 
commissioners,  without  such  notice,  shall  be  absolutely  void.  s.  38. 

The  commissioners  of  highways,  or  a  majority  of  them,  in  al! 
cases  where  they,  or  a  majority  of  them,  shall  have  laid  out  any 
public  highway  through  any  enclosed  lands,  after  giving  the  owner 
or  occupant  sixty  days  notice  to  remove  his  fences,  may  direct 
the  road  to  be  opened  and  worked,  and  no  action  of  trespass  shall 
lie  against  any  person  acting  in  pursuance  of  such  directions. 

Put  if  the  owner  or  occupant  have  appealed,  the  sixty  days  no- 
tice shall  be  given  after  the  decision  of  the  appeal,  s.  39. 

In  all  cases  where  cither  a  public  or  private  road  is  about  to  be 
laid  out  and  it  shall  appear  to  the  two  justices  of  the  peace  that 
all  the  constables  of  the  town  in  which  such  road  is  about  to  he 
laid  out,  are  interested  in  the  land  through  which  the  said  road  is 
to  be  laid  out,  or  in  any  wise  akin  to  the  owners  thereof,  the  said  jus- 
tices may  issue  their  warrant,  directed  to  a  constable  of  any  other 
town  in  the  same  county,  not  interested  in  the  said  lands,  or  akin 
to  the  owners,  commanding  him  to  summon  twelve  reputable 
freeholders,  not  having  an  interest  in  the  said  land,  by  whose  oaths 
the  damages  sustained  by  the  owner  or  owners  of  the  said  land 
shall  be  determined  and  assessed,  according  to  the  provisions  ot" 
this  act.  s.  45. 

IV.  Private  roads. 

.  Upon  application  to  the  commissioners  of  any  town  for  a  private 
oad,  the  commissioners  of  the  town  in  which   such  road  is  de- 
sired,  shall   cause  the   overseer  of  highways   of  the  district  to 
summon  twelve  freeholders  of  the  same  town,  to  meet  on  a  day 


HIGHWAYS.  137 

through  which  such  road  is  applied  for;  and  if  they  shall  certify 
under  oath  that  such  road  is  necessary,  the  commissioners  shall 
lay  out  the  same,  and  cause  a  record  thereof  to  be  made  in  the 
town  clerk's  office,  and  shall  cause  the  damage  to  be  assessed  in 
like  manner  as  if  the  same  was  a  public  highway,  which  shall  be 
paid  by  the  person  or  persons  applying  for  such  road  ;  and  when 
laid  out,  it  shall  be  for  the  use  of  the  applicant,  his  heirs  and  as- 
signs, but  not  to  be  converted  to  any  other  use  or  purpose  than 
that  of  a  road. 

But  the  owner  or  occupant  of  the  land,  through  which  the  road 
shall  be  laid  out,  shall  not  be  prevented  from  making  use  thereof 
as  a  road,  if  he  shall  signify  his  intention  of  making  use  of  the 
same  at  the  time  when  the  jury  or  commissioners  are  to  ascer- 
tain the  damages  sustained  by  laying  out  such  road.  s.  20. 

Private  roads  shall  not  be  more  than  three  rods  wide.  s.  22. 


V.  Appeals. 

Whenever  any  person  shall  conceive  himself  aggrieved  by  the 
determination  of  the  commissioners  of  highways,  either  in  laying 
out,  altering,  or  discontinuing,  or  in  refusing  to  lay  out,  alter,  or 
discontinue  any  road,  he  may,  within  forty  days  thereafter,  ap- 
peal to  any  three  of  the  judges  of  the  court  of  common  pleas 
for  the  county  in  which  such  road  is  situated,  whose  duty  it  shall 
be  to  convene  as  soon  as  may  be  convenient,  and  decide  such  ap- 
peal, and  their  decision,  or  that  of  any  two  of  them,  shall  be  con- 
clusive in  the  premises,  for  which  services  each  judge  shall  re- 
ceive two  dollars  per  day,  to  be  paid  by  the  party  appealing, 
•where  the  determination  of  the  commissioners  shall  be  affirmed  ; 
but  where  it  shall  be  reversed,  the  same  shall  be  collected  and 
paid  as  part  of  the  contingent  charges  of  the  county,  s.  36. 

No  road  which  has  been  fixed  by  the  decision  of  the  judges  ou 
an  appeal  to  them  from  the  decision  of  the  commissioners,  shall 
be  taken  up  or  altered,  but  by  the  order  of  the  same  judges,  if 
they  continue  in  commission,  or  such  of  them  as  do  continue  in, 
commission,  joined  with  such  other  judge  or  judges  as  will  make 
three,  and  it  shall  be  in  the  power  of  any  person  who  desires  to 
have  such  road  discontinued  or  altered,  with  the  approbation  of 
the  commissioners  of  highways  of  the  town  where  such  road  lies, 
to  call  upon  the  said  judges  to  view  the  same,  and  decide  upon 
his  petition,  he  paying  the  judges  the  same  allowance  to  which 
they  are  entitled  on  appeals  from  commissioners,  s.  40. 

The  time  limited  for  appealing  from  the  commissioners  of  high- 
ways to  the  judges,  is  to  be  computed  from  the  time  of  recording 
and  setting  up  by  the  town  clerk  the  order  of  the  commissioner?? 
for  laying  out,  altering  or  discontinuing  a  road.  s.  -10, 

r  is  i 


HIGHWAYS. 

VI.  Assessment  and  commutation. 

All  freeholders,  and  every  free  male  inhabitant,  being  above  the 
ago  of  twenty-one  years,  shall  be  assessed  to  work  on  the  public 
roads  and  highways,  ministers  of  the  gospel  and  priests  of  every 
denomination  excepted.  s.  4-. 

The  commissioners  for  each  town  shall  meet  within  eighteen 
days  after  they  shall  be  chosen,  at  the  place  of  town  meeting,  on 
such  day  as  they  shall  agree  upon,  and  as  often  afterwards  as  need 
shall  be,  and  at  such  time  and  place  as  they  shall  think  meet. 

The  respective  overseers  of  the  road  districts  shall  deliver  a  list, 
subscribed  by  such  overseer,  to  the  clerk  of  the  town  for  which 
he  is  elected,  within  sixteen  days  after  the  day  of  election,  con- 
taining the  names  of  all  the  inhabitants  in  such  road  district  who 
are  liable  to  work  on  the  highways  ;  which  list  the  clerk  shall  deliver 
to  the  commissioners,  who,  or  a  majority  of  them,  shall,  at  their 
next  meeting,  or  as  soon  as  may  be  thereafter,  affix  to  the  name 
of  each  person  the  number  of  days  which  he  shall  be  liable  to  work 
on  the  highways  in  the  same  year,  to  be  determined  by  the  com- 
missioners in  proportion  to  the  estate  and  ability  of  such  person  ; 
and  the  commissioners  shall  thereupon,  after  causing  the  clerk  of 
the  town  to  make  a  copy  of  such  list,  a«d  after  the  commissioners, 
or  a  majority  of  them,  shall  have  subscribed  the  copies  of  such 
list,  cause  the  same  respectively  to  be  delivered  to  the  overseers 
of  the  town  who  returned  the  same,  or  to  their  successors. 

If  the  name  of  any  person  shall  be  left  out  of  such  list,  or  there 
shall  be  an  accession  of  new  inhabitants,  such  persons,  whose 
names  are  omitted,  or  shall  move  into  the  town,  shall  from  time 
to  time  be  added  to  the  said  list,  and  the  person*  be  rated  by  the 
commissioners  to  work  on  the  highways. 

No  person  shall  be  assessed  more  than  thirty  days,  nor  less  than 
one  day  in  one  year,  and  the  whole  number  of  days  assessed  in 
any  town  shall  be  at  least  three  times  the  number  of  the  persons 
subject  to  work  on  the  highways  in  such  town. 

Not  less  than  one  half  of  the  days  so  assessed  shall  be  worked 
out  in  each  road  district  before  the  first  day  of  July  in  every 
year.  s.  5. 

When  it  shall  happen  that  a  greater  quantity  of  Avork  is  re- 
quired to  keep  the  roads  in  repair  than  has  been  rated  on  the  in- 
habitants of  any  of  the  said  districts,  the  overseers  in  each  dis- 
trict are  required  to  make  out  another  assessment  in  the  same 
proportion,  as  near  as  may  be,  not  to  exceed  one  third  of  the 
number  of  days  assessed  before  in  the  same  year.  s.  6. 

If  any  overseer  shall  require  any  team,  cart,  wagon,  or  plough, 
with  a  pair  of  horses  or  oxen,  and  a  man  to  manage  the  same, 
from  any  person  assessed  and  having  the  same,  and  who  shall  not 
commute  for  the  days  he  maybe  assessed,  the  person  furnishing 
the  same,  when  warned  so  to  do  by  any  overseer,  shall  be  entitled 

•>.  credit  of  three  days  work  for  one   man,  nnd   the   fine  for 


.leglect  or  refusal  shrill  be  proportionable,  that,  is  to  say,  three 
times  the  fine  to  be  imposed  for  the  neglect  of  one  person  for 
one  day.  s.  7. 

Every  person  assessed,  other  than  an  overseer,  shall  work  the 
whole  number  of  days  he  shall  be  assessed,  or  commute  for  the 
same  at  and  after  the  rate  of  sixty-two  and  a  half  cents  for  each 
day,  which  money  shall  be  paid  to  the  overseer  of  the  highway--. 
of  the  district  in  which  the  person  paying  the  same  shall  reside,  to 
be  by  him  applied  and  expended  in  the  improvement  of  the  roads 
and  bridges  in  the  same  district,  s.  8. 

The  overseers  shall  give  at  least  twenty-four  hours  notice  to  all 
persons  assessed  to  work  on  the  highway,  and  residing  within  the 
limits  of  their  respective  districts,  of  the  time  and  place  when  and 
where  they  are  to  appear  for  that  purpose.  And  no  person  shall 
be  required  to  work  on  any  highway  out  of  the  district  in  which 
he  resides,  s.  3. 

The  commissioners  of  highways,  in  the  several  towns  adjoining 
any  neighbouring  state  or  province,  are  required  to  assess  upon 
all  such  farms  or  parts  of  farms  as  lie  within  the  jurisdictional 
limits  of  this  state,  although  occupied  and  possessed  by  persons 
residing  without  the  same,  a  due  and  equitable  proportion  of  high- 
way work,  according  to  the  rules  prescribed  by  this  act,  of  which 
assessments,  respectively,  notice  shaH  be  given  in  writing,  sub- 
scribed by  the  owners  of  the  road  district  in  which  such  farm,  or  . 
part  of  farm,  shall  lie,  and  delivered  to  such  occupant  or  possessor, 
or  left  at  his  or  her  dwelling  house,  s.  10. 

The  commissioners  of  highways  in  every  town  of  this  state, 
whenever  they  shall  think  it  necessary  or  useful,  may  direct  and 
empower  any  overseer  of  highways,  in  their  respective  towns,  to 
procure  a  good  and  sufficient  iron  or  steel  shod  scraper,  for  the 
use  of  his  road  district,  to  be  paid  for  from  the  monies  arising 
from  commutations  and  fines  within  such  district. 

And  in  case  such  monies  should  he  insufficient  for  the  purpose, 
such  deficiency  shall,  by  the  said  overseers,  be  assessed  upon*  the 
inhabitants  of  the  said  district,  in  the  proportion  they  are  respec- 
tively assessed  to  work  on  the  said  road  ;  and  if  any  one  so  as- 
sessed shall  neglect  or  refuse  to  pay  such  assessment,  the  same 
may  be  sued  for,  and  recovered  by  the  said  overseer,  with  costs 
of  suit,  before  any  justice  of  the  peace  of  the  same  county,  s.  1  ]  . 

The  commissioners  shall  allow  such  persons  as  live  in  private 
roads,  so  much  of  their  assessment  on  the  highway  as  they  may 
deem  necessary  to  work  such  private  road,  or  annex  such  private 
roads  to  some  of  the  highway  districts,  s.  21. 

VII.  Penalties  for  neglect,  fyc.  in  persons  assessed. 

If  any  person  assessed  and  duly  notified,  shall  neglect  or  refuse 
to  appear  in  person,  or  by  an  able  bodied  man  as  a  substitute,  or 
to  bring  with  him  such  implements,  carriages,  or  cattle,  as  re- 
suiredj  or  shall  remain  idle  or  not  work  faithfully,  or  hinder  others 


J40  HIGHWAYS. 

from  working,  or  neglect  or  refuse  to  pay  the  commutation  money 
in  lieu  of  such  attendance,  such  offender  shall,  for  every  such  of- 
fence, forfeit  the  $im  of  one  dollar. 

And  such  overseer  shall,  within  six  days  thereafter,  in  every 
case  in  which  he  shall  deem  the  excuse  for  such  neglect  or  refusal 
insufficient,  make  complaint  thereof,  in  writing  under,  his  hand,  to 
one  of  the  justices  of  the  peace  of  the  town  for  which  he  shall  be 
elected,  if  any  there  he,  and  if  there  be  none,  then  to  the  next 
justice  of  the  adjoining  town,  and  the  justice  to  whom  such  com- 
plaint shall  bo  made,  shall  forthwith  issue  a  warrant,  under  his 
hand  and  seal,  directed  to  any  constable  of  the  ward  or  town 
where  such  delinquent  shall  reside,  commanding  him  to  levy  such 
fine  on  the  goods,  and  chattels  of  such  offender,  and  the  justice, 
shall  be  entitled  to  receive  twenty-five  cents  for  issuing  such  war- 
rant, and  the  constable  the  like  fees  as  are  allowed  for  the  like 
services  by  the  twenty-five  dollar  act,  and  shall  forthwith  pay 
the  fines  to  the  justice  who  issued  the  warrant,  who  shall  pay  the 
same  to  the  overseer  who  entered  the  complaint,  to  he  by  him 
expended  in  improving  the  roads  and  bridges  in  the  district  of 
which  he  is  overseer. 

But  no  warrant  shall  be  issued  until  the  offender  shall  have 
been  duly  summoned  forthwith  to  appear  before  the  said  justice 
to  show  cause  why  the  said  fine  should  not  be  imposed,  and 
provided  that  the  whole  of  the  costs  shall  not  exceed  the  sum  of 
three  dollars. 

No  excuse  for  refusal  or  neglect  shall  exempt  the  person  ex- 
cused from  working  the  whole  number  of  days  he  may  be 
assessed,  or  paying  the  commutation  in  lieu  of  it,  during  the, 
year  for  which  he  shall  be  assessed,  s.  9. 

Bouton  v.  From  the  return  to  the  certiorari,  it  appeared  that  the  plaintiff  in 

s"  John".' Rep.  error  was  convicted  under   the  preceding  section,  on    complaint 

47->.  made  in  writing,  by  the  overseer,   for  neglecting  to  work  on  the 

highway,   according   to  the  warning  given  him  for  that  purpose, 

upon  which  the  justice  issued  his  warrant  to  levy  the  penalty,  and 

costs.     For  the  plaintiff  in  error  it  was  objected,  that  he  had  been 

convicted  on  the  mere  complaint  of  the  overseer,  without  being 

heard,  or  cited  to  show  cause,  which  the  justice  ought  to  have 

done,  as  in  this  case  he  was  acting  judicially. 

oCnines'Rep.       Thompson*  J.  delivered  the  opinion  of  the  court.*     It  has  been 

260>  decided  by  this  court  that  proceedings  under  this  section  of  the 

act  are  to  be  in  a  summary  way  ;   but  the  question  here  presented 

is,  whether  notice  is  required  to  be  given  to  the  party  against  whom 


*  The  decision  in  thfs  case  is  founded  on  the  act  of  sess.  24.  in  the 
former  revision  of  the  laws;  but  in  the  act  in  the  late  revision,  the  party 
must  be  summoned  to  appear  before  the  justice,  vide  supra.  As  this  case, 
howe. .  er,  illustrates  some  general  principles,  it  was  thought  not  improper 
to  insert  it. 


HIGHWAYS.  141 

the  complaint  is  entered,  before  the  magistrate  issues  his  war- 
rant to  collect  the  fine.  It  is  a  just  and  reasonable  rule,  that  no 
person  should  be  punished,  without  having  an  opportunity  of  being 
heard  in  his  defence.  Had  the  magistrate  any  thing  to  try,  or 
any  discretion  to  exercise,  with  respect  to  issuing  the  warrant.  I 
should  think  it  indispensably  requisite  that  the  party  should  he 
summoned  to  appear.  But  I  cannot  discover,  from  the  provisions 
in  this  section  of  the  act,  that  the  magistrate  has  any  judicial 
powers  whatever  vested  in  him.  If  so,  notice  to  the  party  would 
be  superfluous.  The  overseer  of  the  highways  is  made  the 
judge  with  respect  to  the  imposition  of  the  fine.  He  acts  under 
the  oath  of  his  office,  and  it  is  expressly  made  his  duty,  in  every 
case  in  which  he  shall  deem  the  excuse  for  neglect  or  refusal  to 
work  insufficient,  to  make  complaint  thereof,  in  writing,  to  a  ma- 
gistrate, and  the  magistrate  is  directed  fortktmth  to  issue  his 
warrant  to  collect  the  fine.  No  authority  is  given  to  the  magis- 
trate to  enter  into  an  examination  with  respect  to  the  sufficiency 
of  the  excuse  for  neglecting  to  work.  The  overseer  is  made  the 
io/c  judge  of  this.  If  he  makes  complaint  to  the  magistrate,  with- 
out having  duly  notified  the  party  to  work,  he  would  subject  him 
'self  to  the  penalty  given  in  the  fourteenth  section  of  the  act. 
Whether  this  power  has  been  discreetly  vested  in  the  overseers 
of  highways,  is  not  for  the  court  to  say.  In  most  cases  of  sum- 
mary convictions,  some  judicial  powers  are  given  to  the  mugis 
trates,  and  a  summons  or  notice,  to  the  party  complained  of  is 
recpaisite  ;  but  where  the  magistrate  acts  merely  ministerially,  and 
has  no  discretion  on  the  subject,  no  notice  is  required,  becai; 
would  be  useless.  The  case  before  us  falls  under  the  latter  dis- 
tinction. The  issuing  of  the  warrant  is  matter  of  course,  upon 
the  complaint  of  the  overseer,  without  any  further  investigation. 
The  conviction  must,  accordingly,  be  affirmed. 

On  certiorari.   Sarah  Furman,  the    plaintiiT  be\nv,  brought  an    ^.M'J".^ 
f.ction  of  trespass  against  Beach  and  Saunders,  before  the  justice,    Furraan, 
for -taking  and  carrying   away  a  cow   belonging   to   the  plaintiff.    ^9ohns>R<'l' 
Tiie  defendants   below  pleaded  not  guilty;  and  Beach  pleaded 
nlso  a  justification  under  the  act  to  regulate  highways.* 

At  the  -trial,  it  appeared  that  Saunders,  one  of  the  defendants, 
was  a  constable  of  the  town  of  Unadilla,  and  a  warrant  was  issued 
by  the  commissioners  of  the  highways  of  the  town,  directed  to 
"William  Merithew,  the  overseer  of  the  highways,  commanding 
him  to  cause  the  number  of  days  affixed  to  the  respective  names 
of  the  persons  annexed  to  the  warrant,  to  be  worked  on  the  public 
highway  in  his  district,  according  to  law ;  and  on  which  list  of 
names  annexed  to  the  warrant,  the  plaintiff  was  assessed  to  work 
eight  days  and  a  half.  Saunders  also  produced  a  complaint  in 


*  The  note  io  the  preceding  case  will,  in  some  degree,  also  apply 
to  this* 


HIGHWAYS. 

writing,  directed  to  A.  J.  Beach,  one  of  the  defendants,  who  was 
one  of  the  justices  of  the  peace  of  the  county  of  Otsego,  by  S. 
M  erithew,  overseer  of  the  highways,  stating  that  "  he  had  warned 
Sarah  Furman  to  work  on  the  highways  four  days  and  a  half, 
which  she  had  neglected  and  refused  to  do."  Saunders  also 
gave  in  evidence  a  warrant  issued  by  A.  J.  Beach,  a  justice  of 
the  peace,  under  his  hand  and  seal,  directed  to  any  constable  of 
ihe  county,  reciting  the  above  mentioned  complaint,  and  com- 
manding the  constable  to  levy  and  make,  of  the  goods  and  chat- 
tels of  S.  Furman,  four  dollars  and  a  half,  being  the  penalty  given 
>iy  the  act,  and  also  twenty-five  cents  costs,  Sic.  The  return  to 
the  warrant  stated,  that  Saunders,  the  constable,  had,  by  virtue 
thereof,  levied  on  the  cow  of  the  said  S.  Furman,  and  had  made 
thereof  the  sum  mentioned,  kc.  There  was  no  evidence  against 
Beach,  the  other  defendant. 

It  appeared  that  Sarah  Furman  was  a  freeholder  in  the  town 
H  I  nadilla.  The  justice  gave  judgment  for  the  plaintiff  below,  for 
fifteen  dollars,  and  the  costs. 

Per  Curiam.  "Whether  Sarah  Furman,  being  a  woman  and  a 
rceholder,  was  liable  to  be  assessed  to  work  on  the  highway?,  is 
;i  question  which  does  not  necessarily  arise  in  this  case.  Admitting 
her  not  to  have  been  liable  to  be  assessed,  yet  as  she  was  assessed, 
and  a  complaint  in  writing  made  to  the  justice  by  the  overseer  of 
highways,  of  her  default,  the  justice  was  not  to  inquire  into  the  lega- 
lity of  the  assessment,  but  was  bound  by  the  act  forthwith  to  issue 
his  warrant  of  distress,  and  the  constable.  Avas  equally  bound  to  exe- 
cute it.  The  act  is  peremptory,  and  leaves  no  judicial  or  discre- 
tionary power,  either  with  the  justice  or  constable,  and  so  the 
statute  was  understood  by  this  court,  in  the  case  of  Boiiton  v. 

rjolms.Rep.   .Vei?soH.     That  case,  however,  as  well  as  the   case  of  Lauton  v. 

•-•cainrs'Rep.  Commissioners  of  Highways,  proves  that  the  party  aggrieved  by 
such  a  proceeding  is  not  without  redress,  for  these  summary  pro- 
ceedings may  be  removed  into  this  court,  and  reviewed  by  a 
certiorari,  to  be  directed  to  the  justice  or  overseer,  as  the  case  may 
be.  Both  the  justice  and  the  constable  acted  ministerially  in  this 
case ;  and  a  mere  ministerial  officer  is  not  responsible  for  the  issuing 
or  the  execution  of  process,  so  long  as  the  authority  under  which  the 
process  is  awarded  had  jurisdiction  over  the  subject  matter.  Now 
the  overseer  of  the  highways  was  the  person  to  designate,  in  the 
first  instance,  and  to  deliver  to  the  commissioners  the  names  of 
the  persons  liable  to  be  assessed  ;  and  he  was  also  the  officer  to 
adjudge  what  persons  were  in  default,  and  to  demand  the  war- 
rant. In  the  exercise  of  this  authority,  the, overseer  may  have 
returned  the  names  of  persons  not  liable  to  assessment,  and  he 
may  have  adjudged  persons  in  default  who  were  not  in  default. 
The  remedy  for  the  party,  so  aggrieved,  cannot  be  against  the 
justice  and  constable  concerned  in  issuing  and  executing  the 
warrant  of  distress,  for  they  had  no  alternative  but  to  obey,  as 
the  Jaw  did  not  give  to  either  of  them  the  right  to  inquire  into  the 


HIGHWAYS.  l/jf{ 

V  of  the  assessment,  or  the  truth  and  sufficiency  of  the  alle- 
gation of  the  default.  The  remedy  must  be  either  by  an  action 
t  the  overseer,  or  by  removing  the  assessment,  or  the  pro- 
o:.;dings  under  it,  into  this  court,  so  that  the  same  may  be  quashed. 
It  would  be  against  the  obvious  principles  of  justice  and  policy, 
to  make  the  ministerial  officers  act,  in  a  case  like  this,  at  their 
peril,  when  they  have  no  right  to  judge,  and  are  required  to  act. 
They  are  only  responsible,  as  trespassers,  when  they  act  under  the 
authority  of  a  person  who  had  no  jurisdiction  in  the  case,  or 
when  they  execute  that  authority  irregularly. — Judgment  re- 
versed. 

If  owners  or  occupants  of  farms  adjoining  any  neighbouring 
state  or  province,  and  who  reside  without  the  jurisdictional  limitM 
of  this  state,  shall,  after  three  days  notice  of  the  assessment,  (vide,  * 

anlt)  refuse  or  neglect  to  work  or  commute,  in  like  manner  as  an 
inhabitant,  then  it  shall  be  lawful  for  any  justice  of  the  peace  oi" 
any  county  in  this  state,  on  the  complaint  of  the  overseers,  that 
any  person  or  persons  assessed  in  his  road  district,  residing  with- 
out the  limits  of  this  state,  and  within  the  purview  of  this  act, 
shall  have  refused  to  work  or  commute,  after  being  notified  as 
aforesaid,  to  issue  his  warrant  under  his  hand  and  seal,  directed  to 
any  constable  of  the  town  where  such  lands  shall  lie,  commanding 
him  to  levy  the  fine  prescribed  by  this  act,  for  such  cases  of  re- 
fusal or  neglect,  on  the  goods  and  chattels  of  such  delinquent;  and 
the  justice  and  constable  shall  be  entitled  to  the  same  fees  as  arc 
allowed  for  like  services  by  the  preceding  (9th)  section  of  this  act, 
and  the  said  fine,  when  collected,  shall  be  paid  and  applied  in  the 
manner  thereby  directed,  s.  1 0. 

It  is  to  be  observed,  that  by  this  section  it  is  not  required  that 
the  party  delinquent  should  be  summoned  previously  to  the  issu- 
ing the  warrant. 

Every  person  warned  to  work  shall,  either  in  person,  or  by  an 
able  bodied  man,  as  a  substitute,  actually  work  eight  hours  in  each 
day,  and  shall  be  liable  to  be  fined  in  the  sum  of  twelve  and  a 
half  cents  for  every  hour  such  person  or  substitute  shall  be  in 
default,  to  be  recovered  and  expended  in  like  manner  as  the 
penalty  for  refusing  or  neglecting  to  work,  when  warned,  is  by 
this  act  directed  to  be  recovered  or  expended,  s.  12. 

VIII.  Duties  of  overseers,  and  penalties  for  neglect. 

It  shall  be  the  duty  of  the  overseers  of  highways  to  repair  and 
keep  in  order  the  highways  within  the  several  districts  for  which 
they  shall  be  elected  ;  to  warn  all  persons  assessed  to  work  on  the 
highways  in  their  respective  districts  to  come  and  work  when 
required  so  to  do  by  the  commissioners,  or  any  one  of  them  ;  to 
collect  all  fine  and  commutation  money,  and  to  execute  all  such 
orders  of  the  commissioners  of  the  town  to  which  they  be- 
long, as  shall  be  given  by  th.pjn  in  conformity  to  law  :  8 


HIGHWAYS. 

any  overseer  shall  be  employed  more  days  in  executing  (he 
several  duties  enjoined  on  him  by  this  act  than  he 
to  work  on  the  highway,  he  shall  be  paid  for  the  txcess  at 
the  rate  of  one  dollar  per  day,  and  be  allowed  to  retain  th* 
same  out  of  the  monies  which  may  come  into  bis  hands  for  fines 
in  conformity  to  this  act,  but  shall  not  be  permitted  to  commute 
for  the  days  he  is  assessed,  s.  3. 

Each  overseer  shall,  on  the  second  Tuesday  next  preceding  the 
time  of  holding  the  annual  town  meeting,  within  the  year  for 
which  he  is  elected,  render  an  account  in  writing  to  the  commis- 
sioners of  the  town,  or  any  two  of  them,  who  shall  meet  together 
on  that  day.  for  the  purpose  of  receiving  such  return  of  all  per- 
sons assessed  to  work  on  the  highways  in  the  district  of  which  he 
is  overseer  ;  of  all  those  who  have  actually  worked  on  the  road 
or  highways,  with  the  number  of  days  they  have  so  worked  ;  of 
all  those  who  have  been  fined,  and  the  sums  in  which  they  have 
been  fined :  of  all  those  who  have  commuted,  of  the  manner  in 
which  the  monies  arising  from  fines  and  commutation  have  been 
expended,  and  shall  pay  to  the  commissioners  all  monies  remain- 
ing in  his  hands  unexpended,  to  be  applied  in  making  and  im- 
proving the  roads  and  bridges  in  said  town,  in  such  manner  as 
they  shall  direct. 

And  if  any  overseer  shall  neglect  or  refuse  to  render  such  ac- 
count, or,  having  rendered  such  account,  shall  refuse  or  neglect 
to  pay  any  balance  which  may  then  be  payable  by  him,  he  shall 
forfeit  the  sum  of  five  dollars,  which  said  penalty  and  balance  so 
unpaid  shall  be  recovered  by  the  said  commissioners,  or  the  survi- 
vor or  survivors  of  them,  in  their  or  his  name,  by  action  of  debt, 
in  any  court  having  cognizance  thereof,  with  costs  of  suit ;  and 
the  forfeiture  so  recovered  shall,  by  the  said  commissioner?,  or 
such  survivor  or  survivors,  be  applied  in  making  and  improving 
the  roads  and  bridges  in  such  town.  s.  13. 

Every  overseer  who  shall  neglect  or  refuse  to  warn  the  people 
assessed  to  co:ne  and  work  with  such  implements,  carriages,  and 
cattle,  as  may  be  necessary,  when  required  so  to  do  by  the  com- 
missioners, or  eitbe.r  of  them,  or  to  collect  the  monies  that  ma  y 
arist;  from  fines  or  commutation,  or  to  perform  any  of  the  duties 
and  services  required  by  this  act,  or  which  may  be  enjoined  on 
him  by  the  commissioners  of  the  town  of  which  he  is  elec'. 
a  majority  of  them,  shall  forfeit  for  every  such  neglect  or  refusal 
the  sum  of  leu  dollars,  to  be  recovered  by  any  one  of  the  com- 
missioners of  the  same  town,  in  his  own  name,  before  any  justice 
of  the  peace  in  the  same  county,  with  costs  He  report- 

ed, paid,  and  employed  in  the  same  mauner  as  the  monies  to  be 
paid  into  the  hands  of  the  commissioners  by  the  preceding  sec- 
tion of  this  act  are  directed  to  be  reportrd.  pai>'.  and  employ 

If  any  vacancy  of  overseer  shall  happen,  by  death  or  other- 
wise, the  commissioners  of  the  town  in  which  such  vacancy  shall 
happen,  shall  appoint  other  or  others  in  his  or  their  stead  ;  and 


HIGHWAYS.  145 

ihe  overseer  so  appointed  si. -ill  Irive  the  same  power,  he  subject 
to  llie  same  orders,  and  liable  to  the  same  fines,  forfeitures  and 
penalties,  as  overseers  chosen  by  this  act  are  liable  and  subject 
to.  s.  11. 

The  overseers  shall,  once  in  every  month  after  they  are  elected, 
from  the  first  day  of  April  until  the  u'rst  day  of  December,  cause 
all  the  loose  stones  lying  on  the  beaten  track  of  the  road,  within 
their  respective  districts,  to  be  removed,  and  cause  the  monu- 
jnents  erected  or  to  be  erected,  as  the  boundaries  of  highway.-), 
to  be  kepi  up  and  renewed,  so  that  the  extent  of  such  roads  may 
be  publicly  known,  s.  13. 

IX.   Obstructing  andin  crouching  ftpon  highways. 

It  is  clearly  agreed  to  he  a  nunance  to  dig  a  ditch,  or  make  r   i  H.TVV.  c. 
hedge  over  athwart  the  highway,  or  to  erect,  a  new-gate,  or  to  lay  ^^/xbr?' 
logs  of  timber  in  it,  or  generaJly  to  do  any  other  act  which  will  4J7. 

i  it  less  commodious  ;  so,  to  suffer  the  boughs  of  trees  grow- 
ing near  the  highways  to  hang  over  the  road,  in  such  a  manner 
:is  thereby  to  incommode  the  passage,  and  if  the.  owner  do  not 
top  them,  any  other  person  may,  so  as  to  avoid  the  nuisance. 

A  bridge  built  by  individuals  in  a  highway  without  public  utility,  R- v-  itjiinn;- 
is  indictable  as  a  nuisance.     And  so  it  is,  though  of  public  utility,  w"st°Kiclins 
if  they  build  it  at   first  in  a  slight  and  imperfect   manner,  for  the  ofI7mk*':!.ri'> 
purpose  of  throwing  the  expense  of  maintaining  it  immediately 
on  the  county. 

But  it  is  oo   nuisance  for  an   inhabitant  of  a  town  to  unlade  2  Roll.  AW. 
billets,  &.c.  in  the  street  before  his  house,  by  reason  of  the  neces- 
sity of  the  case,  unless  he  suffer  them  to  continue  there  an  un- 
reasonable time. 

Any  one  may  justify  pulling  down,  or  otherwise  destroying  a  3  Bae.  Abr. 
common  nuisance,  as  a  new  gate  or  house  erected  in  a  highway. 
Also,  bolides  that  all  nuisances  are  punishable  by  indictment  with 
fine  and  imprisonment,  it  is  said,  that  one  convicted  of  a  nuisance 
to  the  highway,  may  be  commanded  by  the  judgment  to  remove 
it  at  his  own  costs,  £-:.•. 

Indictment  for  erecting  a  stone  wall  across  the  highway  :  the  J*- v-  St"  ;• 
defendants  \&-ere  found  guilty  at  the  sessions,  and  fined.     On  a  writ  142.  vide 
of  error  into  the  King's  bench,  it  was  assigned  for  error,  that  the  Jagf1"****' 
court  below  had  not  ordered  by  the  s<une  judgment  that  the 
uuisance,  whereof  the  defendants  were    indicted  and  convicted,    ' 
should  be  abated,  as  hy  law  is  required. 

LORD  KF.NYON,  Ch.  J.  When  a  defendant  is  indicted  for  an 
existing  nuisance,  it  is  usual  to  state  the  nuisance,  and  its  continu- 
ance down  to  the  taking  the  inquisition  ;  it  was  so  stated  in  ]t.  v.  2Str.  ssr. 
Pdjijnnf.au,  "  et  adhuc  existil"  and  in  such  cases  the  judgment 
should  be  that  the  nuisanre  bf  abated.  But  in  this  case  it  does 
not  appear  in  the  indictment  that  the  nuisance  was  then  in  exist- 
ence, and  ?!  'iveuld  lv  /•!>: -\n\\  to  give  judgment  to  abate  a  suppose?! 

I! 


HIGHWAYS. 

nuisance  Which  does  not  exist.  If,  however,  the  nui.-j.uito  stiii 
continue,  the  defendant  may  be  again  indicted  for  continuing  it. 
The  judgment  was  affirmed. 

"  If  any  person  within  any  of  the  said  towns  (i.e.  in  the  coun- 
ties subject  to  this  act)  shall  hereafter  obstruct  any  highway  or 
road,  or  shall  fill  up  or  place  any  obstruction  in  any  ditch  con- 
structed for  draining  the  water  from  any  road,  such  person  30 
offending  shall  forfeit  for  every  such  offence  the  sum  of  five  dol- 
lars, to  be  recovered  with  costs  of  suit,  in  the  name  of  any  per- 
son who  shall  make  complaint  thereof  before  any  justice  of  the 
peace  of  the  county  where  the  offence  shall  happen,  upon  the  oath 
of  one  or  more  credible  witness  or  witnesses,  and  levied  by  dis- 
tress and  sale  of  the  goods  and  chattels  of  the  offender,  by  war- 
rant from  the  justice,  to  be  directed  to  any  constable  of  the  town 
where  such  offender  shall  reside  ;  and  the  said  constable  is  hereby 
required  to  pay  such  penalty  into  the  hands  of  the  commissioners 
of  highways  for  the  town  in  which  the  offence  was  committed,  to 
be  by  them  applied  in  improving  the  public  roads  and  bridges 
in  said  town."  s.  25. 

An  action  of  debt  was  brought  in  a  justice's  court  to  recover 
the  penalty  under  the  above  aection,  and  judgment  was  given  for 
359.        the  plaintiff  below,  on  certiorari  into  the  supreme  court. 

KENT,  Ch.  J.  delivered  the  opinion  of  the  court.  The  question 
i'j,  whether  the  above  recovery  ought  to  have  been  in  the  manner 
prescribed  by  the  ten  pound  act,  or  ought  to  have  beenjn  a  sum- 
mary way,  as  the  section  under  which  it  was  had  would  seem  to 
prescribe  ?  The  section  in  question  is  very  defectively  drawn.  One 
part  of  it  seems  to  contemplate  a  recovery  by  an  action  or  suit  in 
the  ordinary  mode  ;  and  the  other  part  of  it,  so  far  at  least  as  re- 
lates to  the  collection  of  the  money  by  the  constable,  uses  lan- 
guage applicable  only  to  cases  of  summary  convictions.  And 
where  a  statute  admits  of  two  constructions,  it  is  advisable  to  give 
it  that  which  is  consonant  to  the  ordinary  mode  of  proceeding  be- 
fore magistrates,  as  being  the  most  familiar  to  them,  and  because 
in  that  the  trial  by  jury  is  secured.  Summary  convictions  are 
authorized  frequently  in  the  English  laws,  and  they  are  required 
in  three  different  cases  in  the  act  before  us,  viz.  under  the  1  Ith, 
12th,  and  23d  sections.*  But  this  mode  of  proceeding  is  always 
construed-EiricUy  by  the  courts,  and  is  not  to  be  adopted  but  where 
the  language  of  the  law  is  plain  and  unequivocal.  The  judgment 
below  must  be  alarmed. 

r.  On  certiorari.     The  suit  below  was  brought  by  the  defendants 

ufis"nd  *°  recover  a  penalty  for  encroaching  on  the  highway.     The  pro- 
cess  issued  in  the  name  of  the  plaintiff:?,  and  required  the  defend- 


, 


ers  of  high- 

way?, 

I  Johns.  Rep. 

MA 


*  In  the  act,  us  it  stands  in  the  late  revision,  the  order  of  the  sections  "s 
different  from  the  act  of  se^s.  2i.  which  is  here  referred  to. 


HIGHWAYS.  147 

ant  to  show  cause  way,  Sic.  and  not  to  answer.    On  the  trial,  the 
justice  admitted  one  ol' the  plaintiffs  as  a  witness. 

Per  curium.  The  proceedings  were  under  the  20th  section  ol 
the  act,  (in  the  revised  act  the  26th,  which  see  infra)  which  di- 
rects that  the  penalty  is  to  he  recovered  in  the  manner  directed 
hy  the  10th  section,  (in  the  revised  act  the  25  lh)  where  it  is  said 
that  the  penalty  is  to  he  recovered  in  the  name  of  the  person  who 
makes  the  complaint.  And  according  to  our  decision  in  the  case 
of  Btnnel  and  Ward,  the  suit  should  have  been  prosecuted  under 
the  twenty- five  dollar  act.  One  of  the  plaintiff's  was  sworn  as  a 
witness,  and  though  a  mere  trustee,  he  was  liable  fur  costs,  and 
so  far  interested.  On  both  these  grounds  judgment  must  he 
10  versed- 

In  error,  on  ccrliorari  from  a  justice's  court.     Lansing  brought  'owbrr. 
an  action  against  Fowler  before  the  justice,  to  recover  the  penalty  9  John*.  Rep. 
of  five  dollar:;,  for  obstructing  a  highway  or  road.     The  road  wag   J<5' 
not  a  public  highway,  but  a  private  road,  laid  out  by  the  com- 
missioners. 

The  justice,  gave  judgment,  for  the  penalty. 

Pc.rcurinm.  This  was  an  action  to  recover  the  penalty  under  the 
19th  (25th)  section  of  the  act  to  regulate  highway?,  for  obstructing 
a  private  road,  and  the  justice  gave  judgment  for  th.c  penally.  The 
question  is,  whether  the  penally  given  by  that  section  is  recoverable 
for  such  obstruction.  We  think  the  sound  and  just  construction 
«f  th.it  section  to  be,  that.it.  relates  only  to  highways  or  public 
roads.  It  ordains  "  that  if  any  person-  within  any  of  the  said 
lowns  shall  hereafter  obstruct  any  highway  or  road,  &c.  such  per- 
son, so  offending,  shall  forfeit  for  every  such  offence  the  sum  of  five 
dollars,  to  be  recovered,  &c.  In  various  parts  of  the  act,  the 
lerm  road  is  used  synonimously  with  highway,  and  when  it  speaks 
of  a  road  for  individuals  only,  it  is  spoken  of  as  a  private  road. 
The  penalty  is  given  to  the  commissioners  of  the  town,  for  .the 
improvement  of  the  public  roads  and  bridges  in  the  town,  and  this 
fortifies  the  construction  to  this  part  of  the  act ;  for  an  obstruc- 
tion of  a  private  road  is  a  mere  private  injury,  in  which  the  pub- 
i>c  have  no  concern  ;  and  it  would  be  quite  absurd  to  suppose 
that  the  legislature  meant  to  inflict  a  penalty,  and  to  appropriate 
it  to  the  public,  for  an  injury  solely  of  a  private  nature.  On  this 
ground  we  reverse  the  judgment. 

In  error  on  certiorari  from  a  justice's  court.     Barnes  brought   |,f^e)j 
an  action  against  Sage,  before  the  justice,  to  recover  the  penalty   9j»hnt.  Rep 
fur  obstructing  the  highway.     The  parties  joined  issue,  hy  con-  36S* 
sent.     The  defendant  {alleged  that  the   road  in   question   was  a 
disputed  road ;  that  the  land  was  claimed  by  the  defendant,  and 
that  there  were  suits  pending  in  a  higher  court  to  try  the  validity 
of  the  road ;  and  contended,  therefore,  that  the  justice   had  no 
.jurisdiction.     No  plea  of  title  in  writing  was  interposed  by  the  de- 
fendant, nor  was  any  evidence  given  by  him  that  any  action  was 
pending  ;  the  justice,  therefore,  disregarded  these  allegations  ;  and 
tfc?  obstruction  of  the  road  was  proved  by  several  witnesses.  The 


HIGH  \VAYfc. 

plaintiff  produced  a  ropy  of  tlie  record  of  the  road,  containing  a 
particular  description  of  it.  One  witness  proved  that  he  had  been 
called  to  work  on  the  road,  and  several  testified  that  they  had  tra- 
velled on  it,  as  a  public  road  ;  and  the  defendant  declared  that  lie 
had  appealed  to  the  judges  of  the  court  of  common  pleas  for  the 
improper  establishment  of  the  road,  who  had  refused  to  grant  him 
any  redress.  The  justice,  in  his  return,  stated  that  it'v  as  proved 
satisfactorily,  that  the  road  was  established  as  a  public  highway, 
and  h:id  been  obstructed  by  the  defendant.  The  defendant  in- 
terposed no  plea  of  title  in  writing.  He  produced  the  certificate 
of  two  attornius,  that  a  suit  was  pending  in  the  court  of  common 
pi. 'as,  between  the  defendant  and  A.  Hotchkiss,  in  which  the  va- 
lidity of  the  road  was  called  in  question  ;  he  also  produced  a  cer- 
tificate of  the  clerk  of  the  court  to  the  .same  effect.  The  jus-lice 
gave  judgment  for  the  plaintiff  for  five  dollars. 

Per  eurizm.  The  judgment  mu?t  be  affirmed.  Jf  a  in*  plea  of 
title  was  adraiafcible  in  this  ca*e,  no  such  valid  plea  was  offered.  It 
was  necessary  that  it  should  have  been  in  writing.  The  pica,  or 
rather  suggestion,  that  there  were  other  suits  pending,  in  a  higher 
court,  to  try  the  validity  of  the  road,  was  properly  rejected.  It 
had  neither  form  nor  substance.  -But  the  evidence  on  the  trial 
shows,  that,  such  suits  were  between  other  parties,  and  would  in 
no  way  affect  the  present  action.  The  defendant  admitted,  on 
the  trial,  that  he  had  appealed  from  the  decision  of  the  commis- 
sioners of  highways,  to  the  judges  of  tjie  court  of  common  plea.-::, 
who  had  refused  to  give«him  relief.  It  was  unnecessary  for  the 
plaintiff  to  show  all  the  preliminary  steps  to  the  laying  out  of  tlie 
road.  It  was  enough  for  him  to  show  the  record  thereof,  and 
that  it  was  opened  aiul  u:-:uu  as  a  public  highway.  Judgment  af- 
firmed. 

.  In  every  car-e  where  a  highway  has  been  laid  ouf,  and  th; 
hath  been  encroached  upon  by  any  present  or  former  occupant 
of  the  land  through  or  by  which  such  highway  runs,  the  com- 
missioners of  the  town  shall,  if  in  their  opinion  it  be  deemed  ne- 
cessary, order  the  fences  to  be  removed,  so  that  such  highway 
may  be  of  the  bread.h  originally  intended  ;  and  if  such  removal 
shall  not  be  made  in  sixty  days  after  such  notice  given,  the  occu- 
pant, to  whom  the  notice  shall  be  given,  shall  forfeit  and  pay  the 
sum  of  fifty  cents  for  every  day  that  such  fences  shall  continue 
unremoved,  after  the  expiration  of*  the  said  sixty  days,  to  be  re- 
covered in  the  like  manner  as  the  penalties  in  rhe  preceding  sec- 
tion, s.  2ti. 

In  case  of  the  denial  of  the  encroachment  by  any  occupant,  the 
commissioners  shall  apply  to  a  justice  of  the  peace  of  the  county 
for  a  precept,  directed  to  an  overseer  of  highways  of  the  same 
town,  to  summon  twelve  freeholders  thereof,  to  meet  on  a  cer- 
tain day,  oi'  which  day  notice  shall  be  given  by  the  overseer  to 
one  of  the  commissioner?,  and  also  to  the  occupant,  on  which 
day  the  jury  so  summoned,  after  being  duly  sworn,  shall  inquire 
whether  any  encroachment  hath  been  made,  and  by  whom  :  and 


HIGHWAYS.  149 

jf  they  find  it  to  have  been  made,  they  shall  certify  the  same,  and 
by  whom  ;  and  if  made  hy  the  then  or  any  former  occupant,  the 
Ihen  occupant  shall  remove  his  fences  \vilhin  sixty  days  thereaf- 
ter, under  the  penalty  aforesaid,  and  shall  pay  all  the  costs  at- 
tendant on  such  inquiry,  to  he  recovered  by  any  one  of  the  com- 
missioners, before  any  justice  of  the  peace  of  the  county;  il,id. 

But  if  they  shall  find  that  no  encroachment  hath  been  made, 
they  shall  so  certify,  and  ascertain  the  damages  the  then  occupant 
hath  sustained  by  such  suit,  which,  together  with  costs  of  suit, 
shall  be  paid  by  the  commissioner  or  commissioners  out  of  any 
monies  in  Tiis  or  their  hands  appropriated  to  the  making  and  re- 
pairing highways,  ibid. 

No  person  shall  be  obliged  to  remove  any  fence,  except  be- 
tween the  first  day  of  April  and  the.  first  day  of  November  in  any 
year.  ibid. 

In  error,  on  cerliorari  from  a  justice's  court.  Slade  brought  an  Spim-v. 
action  of  debt  against  Spir.cr  in  the  court  below,  for  the  penalty  | '"oims. lien 
of  twenty-five  dollars.  The  plaintiff  declared  that  the.  defendant  359. 
was  the  occupant  of  a  certain  piece  of  land  in  Pittstown,  through 
or  by  Vhich  a  certain  highway  runs,  and  that,  the  commissioners 
of  highways  of  the  town,  under  the  '20th  (26th)  section  of  the  aet 
relative  to  highways,  ordered  the  defendant  to  remove  his  fences, 
being  on  the  same  road,  for  an  encroachment,  so  that  the  highway 
might  be  of  the  usual  breadth:  but  that  the  defendant  continued 
the  same  fence  for  sixty  days  after  notice  of  the  order  of  the  com- 
missioners to  remove  the  same,  and  hath  continued  the.  same  fence 
i'or  fifty  days  since  the  expiration  of  the  said  sixty  days,  and  still 
continues  the  same,  whereby  an  action  hath  accrued  to  the  plain- 
till' to  demand  and  have  of  the  defendant  fifty  cents  for  every  day 
the  fence  had  continued,  after  the  said  sixty  days,  kc.  The  de- 
fendant pleaded  nil  debet.  At  the  trial  before  a  jury,  in  February. 
\  SJ  ! ,  it  was  proved,  that  on  the  !  st  of  July,  1810,  application  was 
made  to  the  commissioners  of  highways  in  Pittstown,  and  a  jury 
was  summoned  to  ascertain  whether  there  was  any  encroachment 
by  the  plaintiff  on  the  highway,  between  the  house  of  the  defendant 
and  the  Hosick  line.  The  jury  met  on  the  1 1th  of  July,  and  found 
by  their  verdict,  that  there  was  an  encroachment  on  the  highway  by 
Slade  and  Spicer,  which  report  or  verdict  the  commissioners  refused 
to  accept,  on  the  ground  that  the  complaint  to  the  commissioners 
was  against  Slade  (the  plaintiff)  only.  It  was  also  proved,  that 
the  commissioners,  on  the  1  1th  of  July,  1810,  order  Spicer,  the 
defendant,  to  remove  his  fence,  so  as  not  to  encroach  on  the  high- 
way ;  and  that  the  encroachment  by  the  defendant  continued  a 
long  time  afterwards, and  down  to  the  time  of  the  trial  in  February, 
1811.  One  of  the  commissioners,  a  witness  for  the  plaintiff,  tes- 
tified, that  he  attended  with  the  jury,  on  the  1 1th  of  July,  and  re- 
fused to  receive  their  verdict ;  and  that  the  defendant  then  con- 
i'essed  that  he  had  encroached  on  the  highway  ;  and  that  he,  ae 
oae  of  the  commissioners,  ordered  the  defendant  to  remove  hir 


HIGHWAYS. 

i'ence,  if  iic  had  encroached  ;  and  it  appeared  that  llie  commis- 
sioner* did,  on  that  day,  give  the  defendant  notice  of  the  en- 
croachment, and  ordered  him  to  remove  his  fence.  The  jury 
found  a  verdict  for  the  plaintiff,  for  twenty-five  dollars,  on  which 
the  justice  gave  judgment. 

Per  curiam.  Several  objections  have  been  taken  to  the  re- 
covery below,  which  need  not  be  noticed,  since  we  perceive  one 
which  goes  to  the  merits  -of  the  case.  Before  the  party  can  he 
in  default,  and  liable  to  the  cumulative  penalties  given  by  the  20th 
(26th)  section  of  the  act  to  regulate  highways,  the  commissioners 
of  highways  of  the  town  must  have  given  him  a  previous  order  or 
notice  of  sixty  days  to  remove  his  fence.  We  are  of  opinion  that 
f.he  requisite  order  was  not  made  in  this  case.  The  words  of  the 
statute  are,  "  when  a  highway  has  been  laid  out,  and  the  same  ha* 
i»een  encroached  upon  by  any  present  or  former  occupant  of  the 
land,  through  or  by  which  such  highway  runs,  the  commissioners 
of  the  town  shall,  if  in  their  opinion  it  be  deemed  necessary,  or- 
der the  fences  to  be  removed,  so  that  such  highway  may  be  of  the 
breadth  originajly  intended."  If  the  removal  be  not  made  in  sixty 
days  after  sucn  notice  given,  the  penalties  attach.  To  perform 
this  duty,  the  commissioners  should  all  meet  and  deliberate  to- 
gether on  the  subject  of  the  alleged  encroachment  ;  and  then,  if 
they,  or  a  majority,  should  deem  it  necessary,  they  are  to  order 
the  fence  to  be  removed,  so  that  such  highway  may  be  of  the 
breadth  originally  intended.  In  this  case,  there  does  not  appear 
to  have  been  any  such  meeting,  deliberation  and  decision,  any  fur- 
ther than  what  might  be  inferred  from  the  fact  that  a  witness  heard 
one  of  the  commissioners  tell  Spicer  to  remove  his  fence,  that  is, 
if  he  had  encroached  on  the  road  or  highway  ;  and  another  wit- 
ness heard  the  commissioners  order  him  to  remove  his  fence,  so 
as  not  to  encroach  upon  the  highway;  and  a  third  heard  them 
give  him  notice  of  the  encroachment,  and  order  him  to  remove 
his  fence.  This  order  or  notice  was  not  sufficiently  precise  and 
particular  to  satisfy  the  law,  and  bring  the  party  into  default.  The 
breadth  of  the  road  originally  intended,  and  the  extent  of  the  en- 
croachment by  the  party  upon  that  breadth,  and  the  place  or 
places  where,  ought  to  have  been  specially  stated,  so  that  he  might 
be  able  to  obey  the  order,  and  know  when  he  had  performed  his 
duty.  The  whole  proceeding  in  this  case  was  extremely  loose 
and  uncertain  ;  and  the  party  ought  not  to  be  exposed  to  penal- 
ties, when  the  order  or  notice  is  stated  so  vaguely  that  he  can- 
not ascertain  from  it,  with  any  reasonable  certainty,  the  situation 
or  extent  of  his  encroachment.  Judgment  reversed. 

If  any  tree  or  trees  upon  any  enclosed  land,  which  hereafter 
shall  fall  or  be  fallen  by  any  person,  his  agent  or  servant,  into  any 
highway,  or  into  any  river  now  used  as  a  highway,  and  shall  not 
be  removed,  but  continue  in  such  highway  or  river  for  the  space 
of  two  days  after  notice  given  thereof  by  any  person,  the  person 
or  persons  occupying  the  farm  or  lot  froia  which  such  tree  or 


HIGHWAYS,  151 

trees  shall  be  fallen,  shall  forfeit  the  sum  of  fifty  cents  for  every 
tree  which  shall  be  so  fallen,  or  suffered  to  rejmin  in  such  high- 
way or  river,  until  the  third  day,  and  a  like  sum  for  every  day 
thereafter,  until  the  same  shall  be  removed,  to  be  recovered  and 
applied  in  the  same  manner  as  penalties  for  obstructing  roads  aret 
directed  to  be  recovered  and  applied. 

And  in  case  any  person  shall  cut  down  any  tree  or  trees  on 
land  not  occupied  by  him,  so  that  they  fall  into  any  highway  or 
river  as  aforesaid,  unless  by  the  order  and  consent  of  the  occu- 
pant, the  person  so  offending  shall  forfeit  to  such  occupant  the. 
sum  of  one  dollar  for  every  tree  so  fallen,  and  the  like  sum  for 
every  day  the  same  shall  remain  therein,  to  be  recovered  as  afore- 
said, with  costs,  s.  27. 

X.   Gates. 

"  No  swinging  or  other  gates  shall  be  allowed  on  any  public 
highway  laid  out  by  virtue  of  this  act,  or  which  has  heretofore 
been  laid  out,  other  than  such  public  highways  as  run  through 
lands  liable  to  be  overflowed  by  the  waters  of  the  adjacent  rivers 
or  streams,  in  such  manner  as  to  remove  the  fences  thereon  ;  and 
all  such  gates  shall  be  erected  and  kept  in  good  repair  by  the 
overseers  of  the  highway  of  the  town,  at  the  proper  cost  and 
charges  of  the  occupant  of  the  land  for  whose  benefit  the  same 
shall  be  erected  ;  and  if  more  than  one  gate  shall  be  erected,  and 
the  intermediate  land  between  the  gates  at  the  extremities  of 
such  land  shall  be  in  the  occupation  of  more  than  one  person  be- 
nefited by  such  gates,  the  whole  charge  of  erecting  and  keeping 
the  same  in  repair  shall  be  borne  by  all  the  occupants  benefited 
thereby,  in  proportion  to  the  extent  of  land  each  occupies  adjoin- 
ing the  highway,  between  the  gates  at  the  extremity  aforesaid  ; 
and  in  case  of  the  neglect  or  refusal  of  any  occupant  to  pay  his 
proportion,  the  same  shall  be  levied,  with  costs  of  suit,  in  like  man- 
ner as  fines  are  by  this  act  directed  to  be  levied  for  refusing  or 
neglecting  to  work  on  the  highways,  of  all  which  gates  an  account, 
shall  be  filed  by  the  commissioners  in  the  town  clerk's  office  ;  and 
if  any  person  shall  open  any  such  gate,  and  shall  not  immediately, 
after  having  passed  the  same,  close  it;  or  shall  wilfully  and  unne- 
cessarily ride  over  any  of  the  grounds  adjoining  such  road  on 
which  such  gates  shall  be  permitted,  to  the  damage,  of  the  occu- 
pant or  occupants  thereof,  each  offender  shall  forfeit  for  every 
such  offence  the  sum  of  one  dollar,  to  be  recovered  by  any  one  of 
the  commissioners  of  the  same  town,  in  the  manner  prescribed  by 
this  act  for  recovering  fines  for  neglect  or  refusal  to  work  on  the 
highways  :  and  such  penalty  shall  not  be  deemed  a  satisfaction 
for  the  damage,  but  the  accnpnat  shall,  notwithstanding,  have  ar. 
action."  s.  30. 


HIGHWAYS. 

Xf.  Mile-Board*  avd  Guide-Paste. 

"  It  -hali  be  the  duty  of  tin:  commissioners  of  h'. . 
several  lott  ns  of  this  state,  to  cause  mile-boards  or  stouts  to  he 
erected,  where  not  already  erected,  on  the  post  roads,  :\ni[  such 
other  public  county  roads,  in  their  respective  towns,  as  they  may 
think  proper,  at  the  distance  of  one  mile  from  each  other,  with 
such  fair  and  legible  inscriptions  or  directions  as  they  may  think 
proper  ;  and  if  any  person  shall  destroy,  remove,  injure  or  deface 
Mich  mile-boards  or  stones,  they  shall  be  liable  to  pay  ten  dollars 
for  each  mile-board  or  stone  so  destroyed,  removed,  injured  or  de- 
faced, to  be  recovered,  with  costs  of  suit,  before  any  justice  of  the 
peace  of  the  county  where  the  offence  shall  be  committed  ;  which 
penalties,  so  levied  and  collected,  shall  be  paid  to  the  commission- 
ers, or  any  one  of  them,  in  the  town  where  such  offence  shall  be 
committed;  and  it  shall  be  the  duty  of  the  said  commissioners 
forthwith  to  repair  the  mile-boards  or  stones  so  injured  or  remo- 
ved, out  of  the  monies  arising;  from  such  penalties  :  and,  moreover, 
the  offender  shall  be  deemed  guilty  of  a  misdemeanuor,  and  pun- 
ishable on  indictment  and  conviction  by  fine  not  exceeding  fifty 
dollars,  or  imprisonment  not  exceeding  three  months,  in  the  dis- 
cretion of  the  court  having  cognizance  thereof."  s.  32. 

"  The  commissioners  of  each  of  the  towns  within  this  state, 
shall  cause  guide-posts,  with  proper  descriptions  and  devices,  to  be 
erected  at  the  intersection  of  all  the  post  roads  in  this  state,  and 
bnch  by-roads  as  they  may  deem  necessary,  leading  to  or  from 
any  town,  viikige,  or  landing  ;  and  it  shall  be  the  duty  of  the  over- 
seers of  the  highways  in  the  several  towns,  to  maintain  and  keep 
in  repair  such  guide-posts  as  may  be  directed  by  order  of  the  com- 
/nissioners  within  the  limits  of  the  districts  for  which  they  are 
elected  or  appointed  respectively  ;  and  the  money  to  defray  tin- 
expense  of  erecting  and  keeping  them  in  repair,  shall  be  levied, 
collected,  and  p^vid,  in  each  town,  in  the  same  manner  as  money  is 
raised  for  the  support  of  the  poor  thereof.  And  every  person  who 
shall  injure  or  deface  any  such  description,  or  destroy  any  of  the 
said  guide-pests,  shall  for  every  such  offence  forfeit  the  sum  often 
'dollars,  to  be  recovered  by  any  one  of  the  commissioners  or  over- 
seers of  the.  highways  of  the  town,  before  any  justice  of  the  peace 
of  the  county,  in  the  same  manner  as  penalties  for  obstructing 
roads  arc  directed  to  be  recovered,  part  of  which  to  be  appropri- 
ated by  the  person  recovering  the  same,  in  replacing  such  posts 
or  repairing  such  injury,  and  the  remainder  to  be  paid  in  the  snme 
manner  as  penalties  for  obstructing  roads  are  directed  to  be  paid  : 
and  the  offender  shall  be  subject  to  the  same  penaJty  as  in  and  by 
the  3'2d  section  of  this  act."  s.  31. 


HIGHWAYS,  153 


XII.  Bridges. 

Whenever  it  shall  appear  to  the  board  of  supervisors  of  any  of 
the  counties  subject  to  this  act,  that  any  one  of  the  towns  in  such 
county  would  be  unreasonably  burthened  by  erecting  or  repair- 
ing any  necessary  bridge  or  bridges  in  such  town,  they  are  au- 
thorized and  required  to  cause  such  sum  of  money  to  be  raised  as 
will  be  sufficient  to  defray  the  expenses  of  erecting  or  repairing 
such  bridge  or  bridges,  or  such  part  thereof  as  they  may  deem 
proper,  which  sum  shall  be  levied,  collected  and  paid,  at  the 
same  time  and  in  like  manner  as  the  contingent  charges  of  the 
county,  and  shall  be  paid  to  the  commissioners  of  the  town  in 
which  the  same  is  to  be  expended,  on  the  order  of  the  supervisor 
thereof;  but  not  more  than  1000  dollars  shall  be  so  raised  in  any 
one  year;  and  in  case  the  commissioners  of  the  town  shall  be  dis- 
satisfied with  the  determination  of  the  supervisors,  touching  an 
allowance  for  any  such  bridges,  such  determination  shall,  on  the 
application  of  the  commissioners,  be  revised  by  the  court  of 
common  pleas  for  the  county,  whose  order  in  the  premises  shall 
be  observed  by  every  such  board  of  supervisors,  s.  33. 

XIII.  Carriages  Meeting* 

In  all  cases  of  persons  meeting  each  other  on  any  turnpike 
road  or  public  highway  in  this  state,  travelling  with  carriages, 
sleighs,  waggons,  or  carts,  the  persons  so  meeting  shall  turn  their 
carriages,  &.c.  to  the  right  of  the  centre  of  the  road,  so  as  to  ena- 
ble such  other's  carriages,  &c.  to  pass  each  other  without  inter- 
ference or  interruption,  under  the  penalty  of  five  dollars  for  every 
neglect  or  offence,  to  be  recovered  by  the  party  aggrieved,  in  an 
action  of  debt,  in  any  court  having  cognizance- thereof,  with  costs 
of  suit.  s.  41. 

XIV.  Commissioners,  how  to  account. 

The  commissioners,  in  their  respective  towns,  shall  render  to 
the  supervisor,  town  clerk,  and  justices  of  the  peace,  or  a  majority 
of  them,  at  their  annual  meeting  for  auditing  tho  accounts  of  the 
overseers  of  the  poor,  an  account  of  the  labour  assessed  and 
•performed,  and  of  the  sums  by  them  received  for  fines  and  com- 
mutation, and  all  other  mpnies  received  under  this  act,  and  the 
improvements  which  have  been  made  on  the  roads  and  bridges 
in  their  respective  towns  during  the  year  immediately  preceding 
such  report,  together  with  an  account  of  the  state  of  such  road3 
and  bridges,  with  a  statement  of  the  improvements  necessary  to 
be  made  thereon,  and  an  estimate  of  the  probable  expense  of 
making  such  improvements  beyond  what  the  labour  to  be  assessed 
in  that  year  will  arcnmplish  ;  and  said  supervisor,  town  clerk,  and 

r  20  1 


154  HIGHWAYS. 

justices,  at  their  meeting  as  aforesaid,  shall  examine  said  account, 
and  make  out  a  certificate  containing  the  substance  thereof,  an* 
deliver  the  same  certificate  to  the  town  cleik  of  such  town,  to  be 
by  him  kept  on  file  for  the  inspection  of  any  of  the  inhabitants  of 
said  town.  The  commissioners  shall  deliver  a  like  statement  to 
the  supervisor  of  the  town,  who  shall  lay  it  before  the  board  of 
supervisors,  who  are  required  to  rause  the  same  to  be  assessed, 
levied  and  collected  in  suchtownj  in  the  same  manner  as  other  con- 
tingent charges  ;  which  sums  are  to  be  paid  by  the  collectors  out  of 
the  first  monies  coming  into  their  hands,  excepting  such  as  shall  be 
raised  for  the  support  of  the  poor,  to  the  town  clerk,  to  be  by  him 
paid  to  the  overseers  of  the  highways,  or  one  or  more  of  them,  on 
the  order  of  the  commissioners  ;  but  the  monies  so  raised  in  such 
town,  in  any  one  year,  shall  not  exceed  two  hundred  and  fifty  dol- 
lars, s.  31. 


B.  TURNPIKES. 

1.  Laying  out  turnpikes. 
II.  Tolls,  and  misconduct  of  toll-gatherer  in  relation  thereto. 

III.  Mile  stones,  penalties  for  defacing,  and  for  other  inju- 
ries to  turnpikes. 

IV.  Inspectors,  and  duties  ichen  turnpikes  are  out  of  repair. 

I.  Laying  out  turnpikes. 

ID  case  of  disagreement  between  the  president  and  directors 
of  turnpike  companies  hereafter  to  be  erected,  and  the  owners  of 
the  land  through  which  the  turnpike  is  to  be  run,  as  to  the  value 
of  the  land  over  which  the  road  is  to  be  run,  and  the  damages 
sustained  by  the  owner,  or  if  the  owner  shall  be  feme  covert,  in- 
sane, or  out  of  the  county,  in  either  case  the  damages  are  to  be 
assessed  by  three  appraisers,  appointed  by  a  judge  of  the  common 
pleas,  each  of  whom  shall,  before  he  proceeds  to  execute  the 
trusts  reposed  in  him,  take  and  subscribe  an  oath  or  affirmation  in 
writing,  before  one  of  the  justices  of  the  peace  of  the  county  for 
which  he  shall  be  appointed,  that  he  will,  without  favour  or  par- 
tiality, estimate  and  assess  the  damages  which  may  be  sustained 
by  the  owner  or  owners  of  the  land  or  improvements,  which  the 
said  corporation  may  deem  necessary  to  take  and  appropriate  for 
said  road. 

Nothing  in  this  act  contained  shall  authorize  the  president  and 
directors  of  any  turnpike  company  to  take  possession  of  any 
public  highway,  until  such  highway  shall  have  been  appraised  and 
paid  for  in  the  same  manner  as  is  directed  by  law  in  cases  of 
taking  private  property;  and  the  amount  of  the  highway  so  ap- 
praised, shall  be  paid  to  the  commissioners  of  highways  for  thf 


rflGHWAYS.  155 

town  through  which  such  road  runs,  to  be  by  them  applied  in 
improving  the  roads  in  such  town. 

The  appraisers  shall  set  down  the  value  of  the  soil, and  improve- 
ments of  the  old  road,  and  the  sums  which  have  been  paid  by 
any  town  for  making  such  improvements,  in  separate  sums  ;  and 
the  sum  for  which  the  soil  is  appraised  shall  be  paid  to  the  owner 
or  owners  of  the  soil ;  and  the  value  of  the  improvements  in 
making  the  old  roads,  and  the  sums  which  shall  have  been  so  paid 
by  any  such  town,  shall  be  paid  to  the  commissioners  of  highways 
of  the  town  wherein  such  road  shall  be.  Sess.  30.  c.  38.  s.  3.  1 
R.  L.  228. 

These  are  all  the  provisions  of  this  part  of  the  act  relative  to 
turnpike  companies,  material  to  be  here  inserted.  Other  parts  of 
jt,  of  more  immediate  importance  to  the  magistrate,  will  be  found 
under  the  remaining  divisions  of  this  title. 

II.  Toll,  and  misconduct  of  toll-gatherer  in  relation  thereto. 

Any  toll-gatherer  may  stop  and  detain  any  person,  riding,  lead- 
ing, or  driving  any  horses,  cattle,  sheep  or  hogs,  sulkey,  chair, 
phaeton,  chaise,  wagon,  sleigh,  sled,  or  carriage  of  burden,  or 
pleasure,  from  passing  through  any  turnpike  gates,  until  they  shall 
have  respectively  paid  the  toll  allowed  by  the  act  incorporating 
the  company.  Sess.  30.  c.  38.  s.  7.  Stewart  v. 

On  certiorari.  The  plaintiff  was  a  toll-gatherer  at  one  of  the  |*ca«ie», 
gates  erected  under  the  act  passed  the  15th  of  March,  1799,  in-  Rel>-  l82- 
corpora! ing  the  first  company  of  the  great  western  turnpike  road. 

By  a  clause  in  the  10th  section  of  the  law,  it  is  provided,  that  no 
gates  or  turnpikes  (except  a  turnpike  on  albftdge  before  mentioned) 
shall  be  erected  at  a  distance  less  than  ten  miles  from  each  other. 
The  1 1  th  section  enacts,  That  as  soon  as  the  lohole  or  any  part  of  the 
said  road  shall  be  completed,  and  permission  to  erect  a  gate  or  gates 
as  aforesaid  be  granted,  the  president  and  directors  may  appoint 
toll-gatherers,  to  colle«t  and  receive,  of  and  from  all  and  every  person 
or  persons  using  the  said  road,  the  tolls  and  duties  herein  after  men- 
tioned, and  no  more,  that  is  to  say,  any  number  of  miles  not  less 
than  ten  in  length  of  said  road,  the  following  sums  of  money,  and 
so  in  proportion  for  any  greater  or  less  distance,  to  wit  :  for  every 
score,  Bfc. 

Under  the  15th  section,  a  penalty  of  five  dollars  is  imposed  on 
any  toll-gatherer  who  shall. receive  more  toll  than  is  established  by 
the  act,  to  be  sued  for  before  any  justice  of  the  peace  of  the 
county  in  which  the  offence  shall  be  committed,  for  the  use  of 
the  party  injured. 

Upon  this  clause  seven  actions  had  been  instituted  below, 
against  the  present  plaintiff,  and  recoveries  obtained  in  all,  for 
receiving  at  his  gate  full  toll  from  travellers  who  had  not  passed 
ten  miles  on  the  road. 

It  was  now  submitted  to  the  court,  whether  the  full  toll  was 
rightly  taken,  or  whether  there  should  not  have  been  a  deduction 


156  HIGHWAYS. 

made  from  it  in  proportion  to  the  distance  which  the  travellers 
had  used  the  road,  less  than  ten  miles,  according  to  the  arithme- 
tical rule,  if  Ifcn  miles  give  so  much,  what  will  seven  and  a  half 
give  ? 

If  the  court  should  decide  in  favour  of  the  proportional  deduc- 
tion, the  judgment  to  he  affirmed  ;  if  against  it,  and  for  the  now 
plaintiff,  a  reversal  to  be  entered. 

KENT,  J.  delivered  the  opinion  of  the  court.  The  question  sub- 
mitted is,  as  to  the  true  construction  of  the  1  1th  section  of  the 
Kent  and  act,  2  R.  L.  p.  393.  The  gates  on  that  road,  except  the  one  upon 
vlsiou.  S  B"  the  Schoharie  bridge,  are  all  required  to  be  not  less  than  ten  miles 
from  each  other;  and  the  1  1th  section  gives  the  toll  therein  esta- 
blished for  any  number  of  miles  not  less  than  ten  ia  length  of  said 
road,  and  so  in  proportion  for  any  greater  or  lesser  distance.  These 
last  words  can  be  satisfied,  by  applying  them  to  the  greater  or 
lesser  distance  of  the  gates  above  ten  miles.  The  gates  may  be 
twelve,  or  fifteen,  or  twenty  miles  apart,  and  then  the  toll  is  to  be 
assessed  ratably,  according  to  the  distance,  which  cannot,  how- 
ever, be  less  than  ten  miles.  This  construction  is  the  only  one 
that  is  reasonable,  and  it  will  satisfy  the  words.  The  idea  that 
the  company  must  vary  the  toll  at  every  ten  mile  gate,  on  the 
suggestion  that  a  person  has  used  the  road  for  a  less  distance  than 
ten  miles,  is  inadmissible,  because  impracticable.  The  toll-gatherer 
has  no  means  of  knowing  whether  the  traveller  has  rode  ten  miles, 
or  a  less  distance,  previous  to  his  arrival  at  the  gate.  If  this  sug- 
gestion was  allowed  to  be  a  ground  of  reduction  of  toll,  it  would 
open  a  door  to  the  greatest  imposition  and  fraud  upon  the  com- 
pany ;  and  it  cannot  be^onsidered  as  within  the  meaning  and  spi- 
rit of  the  act,  especially*1  as  the  words  can  be  satisfied  by  the 
other  construction,  which  is  a  natural,  just,  and  practicable  con- 
struction. Judgment  of  reversal,  therefore,  must  be  entered. 

The  corporations  hereafter  to  be  erected  shall  not  be  entitled 
to  demand  or  receive  toll  at  any  gate,  of  or  from  any  person  pass- 
ing to  or  from  public  worship,  or  a  funeral,  to*  or  from  a  grist-mill 
for  the  grinding  of  grain  for  his  family's  use,  or  to  or  from  a  black- 
smith's shop  to  which  he  usually  resorts,  or  from  any  person  resi- 
ding within  one  mile  of  the  gate,  or  from  any  person  or  persons 
who  are  entitled  to  vote,  when  going  to  or  returning  from  town 
meeting  or  election  for  the  purpose  of  giving  a  vote,  or  from  any 
person  going  for  a  physician  or  midwife,  or  returning,  or  from  a 
juror  or  witness  going  to  or  returning  from  court,  having  been  le- 
gally summoned  or  subpoenaed,  or  from  any  troops  in  the  service 
of  this  state  or  of  the  United  States,  or  from  any  person  going  to 
or  returning  from  any  training,  where  by  the  laws  of  this  state 
they  arc  required  to  attend. 

Not  more  than  half  toll  shall  be  demanded  or  received  from 
any  wagon  or  other  carriage  passing  upon  the  said  road,  the  tire 
or  track  of  the  wheel  whereof  is  six  inches  wide,  nor  more  than 


HIGHWAYS.  157 

one  fourth  from  those  of  nine  inches  wide,   and  those  of  twelve 
inches  v\ide  shall  pass  without  paying  any  toll  whatever,      s.  7. 

In  error  on  certiorari  from  a  justice's  court.     Coon  sued  Chesl- 
ney  before  the  justice,  in  debt  for  five  dollars,  for  exacting  toll,  as  s  Johns.  Hop. 
a  toll-gatherer,  at  the  toll-gate,  on  the  first  great  western  turnpike,   1; 
when  the   plaintiff  was  going  to  and  returning  from  a  grist-mill. 
for  the  purpose  of  having  his  grain  ground. 

It  appeared  that  Chestney,  though  told  that  the  plaintiff  was 
going  to  Watson's  grist-mill  with  grain  to  be  ground,  exacted  the 
toll,  and  after  the  grain  was  ground,  the  defendant  obliged  the 
plaintiff  to  pay  toll,  though  informed  by  the  plaintiff  and  the  mil- 
ler, that  the  plaintiff  had  gone  to  the  mill  for  no  other  purpose. 
It  appeared  that  the  plaintiff  resided  in  Carlisle,  and  Watson's  grist* 
mill  is  in  Schoharie,  on  or  near  the  turnpike,  and  that  the  plain 
tiff  and  his  neighbours  generally  went  to  Watson's  mill  when  there 
was  no  grinding  in  the  mill  at  Carlisle. 

The  act  (22.  sess.  c.  30.  s.  11.)  provides,  that  no  toll  shall  be 
received  from  any  person  passing  to  or  from  public  ivorship,  or  to 
or  from  his  common  business  on  his  farm,  or  to  or  from  any  mill  ;  and 
the  act  passed  llth  April,  1803,  (31  sess.  c.  213.)  explanatory  of 
the  former  act,  says,  persons  shall  be  exempt  from  toll,  going  to 
or  returning  from  any  grist-mill,  to  which  such  person  usually  re- 
sorts,for  the  sole  purpose  of  grinding  for  the  use  of  his  family,  or  of 
those  who  may  employ  him,  and  no  other. 

The  justice  gave  judgment  for  the  plaintiff  below. 

Per  curium.     The  evidence  was  sufficient  to  support  the judu 
ment.     The  plaintiff  below  went,  as  it  appears,  to  Watson's  grist- 
mill to  get  his  grain  ground,  and   for  no  other  purpose ;  arid  he 
generally  went  there  when  he  could  not  have  it  ground  in  his  own 
town.     The  judgment  must  be  affirmed. 

In  error,  on  certiorari,  from  a  justice's  court.     Kerrick  brought  stratum*, 
an  action  against  Stratton,  before  the  justice,  for  obstructing  the   ^John's.' K«{>. 
road  leading  from  the  village  of  Cocksackie,  on  the  1st  of  June,  356- 
IS  12,  in  such  a  manner  as  to  prevent  the  plaintiff  from  passing 
with  his  wagon  and-horses,  whereby  he  was  hindered  from  pur- 
suing his  lawful  business,  &c. 

Samuel  Rockwell,  a  witness  for  the  plaintiff,  testified,  that  he 
was  a  blacksmith,  and  did  work  for  the  plaintiff  on  the  fisrt  of  June  ; 
and  that  on  that  day  the  plaintiff  brought  him  a  load  of  boards  to 
pay  for  smith  work  done  for  him  a  year  before.  On  the  first  of 
June,  the  plaintiff  came  with  his  wagon  to  the  turnpike  gate,  and 
the  defendant  demanded  toll,  and  the  plaintiff  claimed  to  pass  free. 
as  he  had  been  to  the  blacksmith's  ;  but  the  defendant  shut  the 
gate,  and  refused  to  let  the  plaintiff  pass  unless  he  paid  the  toll. 
The  plaintiff,  after  waiting  about  an  hour  and  a  half,  turned  back 
and  w:ent  by  another  road. 

It  appeared  that  the  defendant  asked  the  plaintiff  what  he  had 
done  with  the  load  of  boards?  and  the  plaintiff  refused  to  inform 
him.  The  act  of  incorporation  of  the  turnpike  company  was 


|58  HIGHWAYS. 

read.  It  was  proved  that  the  plaintiff  resided  about  seven  miles 
from  the  turnpike  gate,  and  one  blacksmith  lived  within  two  miles, 
and  another  within  four  miles  of  the  plaintiff's  house  ;  but  the 
blacksmith  who  testified  that  he  did  work  for  the  plaintiff,  lived 
east  beyond  the  turnpike  gate,  in  the  village  of  Cocksackie.  The 
jury  found  a  verdict  for  the  plaintiff  for  five  dollars,  on  which  the 
justice  gave  judgment. 

Per  curiam.  The  turnpike  act,  (sess.  28.  c.  22.)  under  which 
the  toll  was  demanded,  exempts  from  the  payment  of  toll,  any 
person  passing  to  and  from  a  blacksmith's  shop  to  which  he  usually 
resorts.  Assuming  that  the  blacksmith's  shop  of  Samuel  Rock- 
well, in  the  village  of  Cocksackie,  was  the  one  to  which. the  plain- 
tiff below  usually  resorted,  yet  it  must  appear  that  the  object  of 
his  going  to  the  shop  was,  for  work  to  be  done  at  the  shop.  Car- 
rying a  load  of  boards,  or  wheat,  or  going  with  a  drove  of  cattle 
to  the  blacksmith  for  the  purpose  of  paying  a  debt,  would  not  en- 
title the  party  to  exemption  from  toll,  any  more  than  if  he  was 
merely  going  to  pay  a  family  or  friendly  visit  to  the  blacksmith. 
Any  other  construction  of  the  act  would  be  unreasonable,  and 
Jead  to  fraud.  Every  farmer  carrying  a  load  of  wheat  to  market, 
,  might  always,  upon  the  construction  given  to  the  act  by  the  jury, 
exempt  himself  from  toll,  by  calling  at  the  blacksmith's  shop,  in 
his  way,  and  getting  a  horse  shoe  reset.  If  the  principal  object 
of  the  travelling  be,  to  have  blacksmith's  work  done,  the  person 
is  entitled  to  pass  toll  free,  but  not  otherwise.  Here  the  object 
appears  to  have  been  to  pay  a  debt.  That  must  have  been  the 
principal  end,  and  the  verdict  was",  consequently,  against  law. 
Judgment  reversed. 

straiten  v.  In  error,  on  cerliorari,  from  a  justice's  court.  Hubbel  sued 
o Johns! Rep.  Stratton,  before  the  justice,  for  obstructing  the  highway  leading 
from  the  village  of  Cocksackie,  and  preventing  the  plaintiff  from 
proceeding  on  the  road  about  his  lawful  business,  &.c.  It  was 
proved  that  the  plaintiff  came  to  the  turnpike  gate  with  his  wag- 
on and  horses,  and  demanded  to  pass  free,  because  he  had  been 
to  his  usual  blacksmith's.  The  defendant,  who  was  the  toll-ga- 
therer, refused  to  let  him  pass  until  he  paid  the  toll.  The  plain- 
tiff confessed  that  he  had  been  down  to  Cocksackie  landing  with 
a  load  of  boards,  and  had  paid  toll  on  going  down.  Rockwell,  the 
blacksmith,  testified  that  he  had  been  the  plaintiff's  usual  black- 
smith for  a  number  of  years,  and  had  mended  a  pot  for  the  plain- 
tiff about  the  time  that  the  plaintiff  claimed  to  pass  toll  free  on 
his  return ;  but  the  witness  could  not  remember  the  exact  day. 
The  jury  found  a  verdict  for  the  plaintiff,  for  five  dollars,  on  which 
the  justice  gave  judgment. 

Per  curiam.  There  was  no  just  pretence  for  an  exemption 
from  toll.  The  principal  business  of  Hubbel  was  to  carry  a  load 
of  boards  to  market;  and  if  the  pot  had  been  mended  by  the 
blacksmith  on  that  day,  it  was  not,  and  could  not  have  been  the 
principal  object  of  the  journey.  It  was  merely  an  incidental  busi- 


HIGHWAYS.  159 

ness,  if  not  a  mere  pretext  to  claim  the  exemption.  He  ought  to 
be  considered  as  returning  from'market,  and  not  as  returning  from 
the  blacksmith's  shop  ;  because  that  shop  was  not  the  termina- 
tion, any  more  than  it  was  the  object,  of  his  travelling  on  that  day 
from  home.  The  claim  of  exemption  was  unjust,  and  a  fraudu- 
lent abuse  of  the  act.  Judgment  reversed. 

If  any  toll-gatherer  shall  unreasonably  delay  or  hinder  any 
traveller  or  passenger  'at  the  gate,  or  shall  demand  and  receive 
more  than  the  legal  toll,  he  shall,  for  every  such  offence,  forfeit 
and  pay  five  dollars,  to  be  recovered  by  the  person  so  unreason-  . 
ably  detained,  for  his  own  use,  with  costs  of  suit,  in  any  court  hav- 
ing cognizance  thereof. 

•  Provided,  that  if  no  goods  or  chattels  can  be  found  to  satisfy 
the  judgment  and  costs,  the  corporation  shall  pay  the  same  ;  and 
in  case  property  of  the  company  cannot  be  found  wherewith  to 
satisfy  the  judgment,  the  person  recovering  the  same,  may  reco- 
ver and  receive  the  amount  from  the  treasurer  of  the  company, 
together  with  all  costs  of  suit,  and  may  give  such  judgment  in 
evidence  on  the  trial  of  the  cause  against  the  treasurer,  s.  9. 

On  certiorari.     The  defendant  in  error  brought  an  action  of  ConkKngv. 
debt  against  the  plaintiff  in  error,  in  the  court  below,  to  recover  ^johus.  Rep. 
the  penalty  of  twenty-five  dollars,   given   by  the  18th  section  of  410-, 
the  act  to  establish  a  turnpike  corporation/or  improving  and  making 
a  road  from  the  west  line  of  the  town  of  Salisbury,  in  the  state  of 
Connecticut,  to  the  Susquehannah  river,  at  or  near  the  town  of  Jericho. 
The  act  declares,  that  if  any  toll-gatherer  shall  unreasonably  delay- 
er hinder  any  traveller,  or  passenger,  at  any  of  the  gates,  or  shall        i 
demand  or  receive  more  toll  than  is  by  the  act  established,  he  shall, 
for  every  such  offence,  forfeit  and  pay  twenty-five  dollars,  to  be  reco- 
vered by,  and  for  the  use  of  the  person  so  unreasonably  detained  or 
hindered.     L.  N.  Y.  vol.  3.  p.  120.     The  plaintiff,  in  his  declara- 
tion before  the  justice,  alleged,  that  the  defendant,  as  toll-gatherer 
of  the  said  company,  incorporated  by  the  said,  act,  on  the  5th  of 
January,  1 807,  at  the  town  of  Kingston,  did  unreasonably  delay 
and  hinder  the  plaintiff,  at  one  of  the  toll-gates  on  the  said  road. 
The  defendant  pleaded  nildebet.     The  defendant  in  error  was  a 
farmer,  residing  in  the  town  of  Hurley ;  and  his  farm  consisted  oi' 
different  parcels  of  land,  among  which  were  two  wood-lots,  at  a 
place  called  Beaverkill,  in  the  town  of  Hurley.     He  had  been  in    . 
the  practice,  for  many  years,  of  going  to  his  wood-lots  to  make 
posts  and  rails  for  the  use  of  his  farm  ;  and  a  road  had  long  been 
open  between  his  dwelling-house  and  the  same  wood-land,  part 
of  which  road  is  included  in  the  turnpike.     On  the  5th  of  January, 
1797,  he  was  going  to  his  house  from  the  said  wood-land,  and  on 
coming  to  the  toll-gate  on  the  turnpike  road,  he  informed  the 
plaintiff  in  error  that  he  was  going  to  a  part  of  his  farm,  for  the 
purpose  of  procuring  posts  and  rails,  which  was  the  common  busi- 
ness of  his  farm,  and  demanded  to  pass  through  the  gate  free  of 
toll,  pursuant  tovthe  provision  in  the  10th  section  of  the  said  turn- 


160  HIGHWAYS. 

pike  act,  which  declares,  that  nothing  in  the  said  ad  shall  be  con- 
strued to  entitle  the  said  corporation  to  demand  toll  of,  and  from,  any 
person  going  to,  or  from,  his  common  business  on  his  farm  or  saw- 
mill, &.c.  The  plaintiff  in  error  refused  to  let  the  defendant  in 
error  pass  until  he  paid  the  toll,  and  actually  detained  him  ten 
minutes,  until  the  toll  was  paid.  Judgment  was  given  in  the  court 
below,  in  favour  of  the  plaintiff,  for  the  amount  of  the  penalty  and 
the  costs. 

THOMPSON,  J.  delivered  the  opinion  of  the  court.  From  the 
testimony  stated  in  the  return  to  the  certiorari,  I  am  inclined  to 
think  that  the  plaintiff  below  was  a  person  entitled  to  pass  through 
the  gate  toll  free,  but  that  his  case  is  not  within  the  13th  section 
of  the  act,  so  as  to  subject  the  toll-gatherer  to  the  penalty.  This 
section  appears  to  me  to  relate  to  the  delay  or  hindrance  of  per- 
sons who  are  bound  to  pay  toll.  They  are  denominated  travellers, 
or  passengers  ;  and  the  penalty  is  for  unreasonably  delaying  them. 
This  would  seem  to  imply  a  right  to  delay  them  a  reasonable 
time,  and  until  toll  was  paid.  But  if  the  section  applies  to  per- 
sons exempted  from  toll,  any  hindrance  whatever  would  be  illegal. 
As  to  them,  the  road  is  free,  and  on  the  same  footing  with  any 
common  public  highway  ;  and  the  remedy  for  any  hindrance  or 
interruption  in  the  free  use  of  the  road,  must  be  the  same  as  if  it 
had  happened  on  any  other  public  highway.  We  are  of  opinion, 
therefore,  that  the  plaintiff  below  has  mistaken  his  remedy,  and 
that  the  judgment  must  be  reversed. 

III.  Mile-Stones,  penalties  for  defacing,  and  for  other  injuries  to 
Turnpikes. 

The  turnpike  corporation  shall  cause,  mile-stones  or  posts  to  be 
erected  and  maintained,  one  for  each  mile  of  the  road ;  and  on 
each  stone,  or  post,  shall  be  fairly  and  legibly  marked,  or  inscrib- 
ed, the  distance  the  said  stone  or  post  is  from  the  place  of  the 
commencement  of  the  said  road,  together  with  a  continuation  of 
the  distance  from  any  city  or  town  where  such  road  shall  com- 
mence, at  the  end  of  any  other  road  or  highway  which  has  mile- 
stones, with  such  distance  marked  thereon ;  and  shall  also  erect 
guide-posts  at  the  intersection  of  all  public  roads,  leading  into,  or 
from  the  turnpike,  on  which  shall  be  inscribed  the  name  of  the 
town  to  which  such  intersecting  road  leads,  in  the  direction  to 
which  the  hand  on  the  same  points. 

If  any  person  shall  wilfully  break  or  cut  down,  deface  or  injure, 
any  of  the  said  mile-stones  or  posts,  so  to  be  erected,  or  shall  wil- 
1'ully  break,  or  throw  down  any  of  the  said  gates  or  turnpikes, 
or  shall  dig  up  or  spoil  any  part  of  the  said  road,  or  any  thing 
thereunto  belonging,  or  shall  forcibly  pass  either  of  the  said  gates 
without  having  previously  paid  the  legal  toll,  such  person  or  per- 
sons shall,  for  every  such  offence  or  injury,  forfeit  and  pay  the 
sum  of  twenty-five  dollars,  to  be  recovered  by  the  said  corpora- 


HIGHWAYS. 

chin,  l',)r  their  use,  in  an  action  of  debt,  before  any  justice  of  the 
peace  of  the  county  where  the  offence  shall  be  committed,  or 
where  the  offender  may  be  found. 

If  any  person  shall,  with  his  team,  carriage,  or  horse,  turn  out 
of  the  said  road,  or  pass  either  of  the  said  gates  on  ground  adja- 
cent thereto,  and  again  enter  on  said  road,  having  passed  the  said 
gate  or  gates,  to  avoid  the  payment  of  the  toll  due  by  this  act, 
such  person  or  persons  shall  forfeit  ami  pay  a  fine  not  exceeding 
fu'e  dollars,  to  be  recovered  in  like  manner  by  the  said  corporation, 
with  costs.  Sess.  30.  c.  38.  s.  8. 

IV.  Inspectors,  and  duties  when  turnpikes  are  out  of  repair. 

The  commissioners  to  be  appointed  in  the  several  counties  of 
this  state,  in  which  there  is  a  turnpike  road,  and  no  provision  inadje. 
for  inspecting  it,  shall,  each  one,  before  he  proceeds  to  execute 
the  trust  reposed  in  him,  take  and  subscribe  the  following  oath, 
before  one  of  the  justices  of  the  peace  of  the  county  for  which 
hi-  is  appointed  : 

/ do  swear,  (or  affirm,)  that  I  will  faithfully,  impartially,  ant1 

according  to  the  best  of  my  judgment  and  understanding,  execute 
and  perform  the  ojfice  and  duty  of  commissioner  to  inspect  turnpike 
roads  in  the  county  (here  insert  the  county  for  which  he  is  ap- 
pointed) according  to  lain.  Sess.  36.  c.  91.  s.  1,  2.  '2  II.  L.  22k 

Whenever  complaint  is  made  to  any  of  the  commissioners  that 
the  turnpike  is  out  of  repair,  it  shall  be  his  duty  to  examine  the 
road  committed  to  his  charge,  and  if  he  shall  discover  it  not  to  be 
in  good  repair,  or  shall  find  any  of  the  gates  placed  in  situations 
contrary  to  law,  he  shall,  by  writing  under  his  hand,  give  notice 
thereof  to  the  directors,  or  one  of  them  ;  and  if  the  company  shall 
not  immediately  thereupon  repair  such  defect,  remove  such  gate, 
or  throw  open  the  gate  or  gates  on  such  road,  as  such  commis- 
sioner shall  by  his  notice  require,  until  the  road  is  repaired  or  gate 
removed,  he  shall  make  complaint  to  the  attorney  general  or  dis- 
trict attorney,  who  shall  cause  the  president,  directors,  and  com- 
pany, to  be  prosecuted,  and  if  they  shall  be  convicted  of  suffering 
the  road  to  be  out  of  repair,  the  court  may  impose  a  fine  not  ex- 
ceeding two  hundred  dollars. 

Whenever  complaint  in  writing  shall  be  made  to  any  of  the 
commissioners,  that  any  turnpike  road,  or  any  part  thereof,  is  our 
of  repair,  such,  commissioner  shall,  after  having  viewed  the  road, 
if  the  same  is,  in  his  opinion,  out  of  repair,  give  notice  in  writing  to 
the  toll-gatherer,  of  such  defect,  and  also  shall,  in  his  discretion  in 
the  said  notice  order  such  gate  or  gates  to  be  thrown  open,  which 
shall  immediately  be  opened,  and  remajn  open,  and  no  toll  be  de- 
manded until  the  gate  keeper  receivr  a  certificate,  under  the 
hand  of  one  of  the  commissioners  in  such  county,  that  such 
voad  is  in  sufficient  repair,  and  granting  permission  to  shut 
-•'!<•!)  irate  :  :m«l  if  -nc'i  !,<-<-'!MT  of  the  <r;ite  ;rs  af*»re--:fii].  sh.;i!l  not; 


HOMICIDE. 

immediately  after  receiving  a  notice  fur  that  purpose,  ;,s  aforesfeid, 
open  such  gate,  and  keep  the  same  open  until  permission  to  shut 
the  same  is  obtained  as  aforesaid,  or  if  he  shall  hinder  or  delay 
any  person  or  persons  in  passing  the  said  gate  or  shall  take  or  de- 
mand toll  from  any  person  or  persons  in  passing  the  same,  after 
the  notice  to  throw  open  such  gate  has  been  given  as  aforesaid, 
and  before  such  permission  as  aforesaid  hath  been  granted  to  shut 
the  same,  the  toll-gatherer  of  such  gate  shall,  for  every  such  of- 
fence, forfeit  and  pay  to  the  party  aggrieved,  the  sum  often  dol- 
lars, to  be  recovered  by  an  action  of  debt,  in  the  name  of  the 
party  aggrieved,  for  his  own  use,  before  any  justice  of  the  peacr 
of  the  county  in  which  such  gate  is  situate,  in  which  action  it 
shall  be  sufficient  for  the  plaintiff  to  declare  that  the  defendant 
is  indebted  to  him  in  the  sum  often  dollars,  for  demanding  and 
taking  toll  at  such  gate  as  aforesaid,  or  delaying  or  hindering  such 
plaintiff*  in  passing  such  gate  (as  the  case  may  be)  contrary  to 
this  act,  and  it  shall  be  lawful  for  the  plaintiff  in  such  action,  if 
judgment  shall  be  obtained  in  his  favour,  to  have  execution  with- 
out delay,  in  the  form  prescribed  by  the  twenty-five  dollar  act, 
on  which  the  defendant  may  be  imprisoned  until  the  amount  of 
the  judgment  and  costs  is  paid. 

Each  commissioner  shall  be  entitled  to  two  dolla/s  for  every 
day  spent  in  viewing  the  road,  which,  in  case  the  road  shall  be 
adjudged  out  of  repair,  shall  be  paid  by^the  toll-gatherer  nearest 
that  part  of  the  road  so  adjudged  out  of  repair,  out  of  the  tolls 
received  or  to  be  received  by  him,  and  which  the  commissioner 
shall  and  may,  on  demand  and  refusal,  recover  of  the  toll-gatherer 
in  an  action  of  debt  with  costs  of  suit. 

But  if  the  road  shall  be  adjudged  in  good  order  and  repair,  the 
complainant  shall  pay  the  commissioners  their  compensation,  to 
lie  recovered  in  like  manner,  s.  8.  and  see  sess.  30.  c.  38.  s.  16, 
1  R.  L.  23d.  in  which  part  of  this  provision  is  adopted. 


HOMICIDE. 

The  taking  away  the  life  of  another,  whether  it  amount  to  fe- 
lony or  not,  is  called  by  the  general  name  of  homicide,  which  may 
he  either  felonious,  justifiable,  or  excusable.  Felonious  homicide 
may  be  either  murder  or  manslaughter,  according  a&  the  act  ia 
perpetrated  with  or  without  a  malicious  intent. 

I.  Murder. 
II,  Manslaughter. 
III.  Homicide  not  fdonious. 


HOMICIDE. 

I.  Murder. 

Murder  is  the  voluntarily  killing  any  person  (which  extends  not  i  East,  P.  c. 
to  infants   iu  the  womb)  lining  in  the  peace  of  the  people,  of  ma-   Fosuasfi. 
Jice  prepense  or  aforethought,  either  express  or  implied  by   law: 
the  sense  of  which  word  malice  is  not  only  not  confined  to  a  parti- 
cular ill-will   to  the  deceased,   but  is  intended  to  denote,  as  Mr. 
Justice  Foster  expresses  it,  an  action  flowing  from  a  wicked  and 
corrupt  motive,  a  thing  done  malo  ammo,  where  the  fact  has  been 
attended  with  such  circumstances  as  carry  in  them  the  plain  indi-    • 
cations  of  a  heart,  regardless  of  social  duty,  and  fatally  bent  upon 
mischief.     And.  therefore,  malice  is  implied  from  any  deliberate 
cruel  act  against  another,  however  sudden. 

Express  malice  is,  when  one,  with  a  sedate,  deliberate  mind,  and  4  Black, 

,      Com.  194, 

formed  design,  doth  kill  another:  which  tormed  design  is  evi- 
denced by  external  circumstances  discovering  that  in  ward  intention: 
as  lying  in  wait,  antecedent  menaces,  former  grudges,  and  con- 
certed schemes  to  do  him  some  bodily  harm. 

Malice  is  implied  in  every  instance  of  homicide  amounting,  in  iKast,  P.  c. 
point  of  law,  to  murder  :  and  in  every  charge  of  murder,  the  fact 
of  killing  being  first  proved,  all  the  circumstances  of  accident, 
necessity  or  infirmity,  are  to  be  satisfactorily  proved  by  the  pri- 
soner, unless  they  arise  out  of  the  evidence  produced  against 
him.  In  all  cases  where  it  appears  that  there  was  an  interval  of 
reflection,  or  a  reasonable  time  for  the  blood,  if  it  had  been  heated, 
to  cool,  after  which  the  deadly  purpose  is  effected,  however 
grievous  the  provocation  may  have  been,  the  party  killing  is  guilty 
of  murder :  and  however  a  provocation  received  may  rebut  the  im- 
plication of  malice,  it  will  be  no  answer  in  alleviation  to  express 
malice  proved.  And,  therefore,  if  upon  a  provocation  received,  one 
party  deliberately  and  advisedly  denounce  vengeance  against  an- 
other, as  by  declaring  that  he  ivill  have  his  blood,  or  the  like,  and  after- 
wards carry  his  design  into  execution,  he  will  be  guilty  of  murder  ; 
although  the  death  happened  so  recently  after  the  provocation  as 
that  the  law  might,  apart  from  such  evidence  of  express  malice,  have 
imputed  the  act  to  unadvised  passion. 

Poisoning  is  an  instance   in  which  the  law  necessarily  implies  i_East,P.  c. 
malice,  howeve/  great  tho   provocation,  because  it  is  a  delibe- 
rate act. 

If  a  man  kills  another  suddenly,  without  any,  or  without  a  con-  4  Black. 

.  ,         .  .  .        ,          .         ,.  ,-  Com.  200. 

sidcrable  provocation,  the  law  implies  malice. 

The  manner  of  procuring  the  death  of  another  with  malice  is,  i  East,  p.  c. 
generally  speaking,  immaterial  in  point  of  law  ;  with  this  reservation,  2' 
however,  that  the  malice  must  be  of  corporal  damage  to  the  party  ; 
and  therefore  working  upon  the  fancy  of  another,  or  treating  him 
harshly,  or  unkindly,  is  not  such  a  killing  as  the  law  takes  notice  of. 

If  a  man,  however,  does  such  an  act,  of  which  the  probable  con-   ^  R!ack. 

CuiU.  1S7« 

sequence  may  be.  and  eventually  is, 'death  :  such  killing  may  be 


JiOMlCIDi. 

murder,  although  no  stroke  be  struck  l;y  hinvseli,  ;<nd  lio  killing 
may  he  primarily  intended  ;  as  was  the  case  of  the  unnatural  son, 
who  exposed  his  sick  father  to  t.^e  air  against  his  will,  hy  reason 
whereof  he  dii-d  ;  of  the  harlot  \\lio  laid  her  child  under  leave- 
in  an  orchard,  where  a  kite  struck  it  and  killed  it  ;  and  of  the 
parish  ollicer,  who  shifted  a  child  from  parish  to  parish  till  it 
died  for  want  of  care  and  sustenance. 
4  filack.  Jf  upon  a  sudden  provocation,  one  heats  another  in  a  cruel  and 

Coin.  19'J. 

uausual  manner,  so  that  he  dies,  though  he  did  not  intend  his 
death,  yet  he  is  guilty  of  murder  hy  express  malice  ;  as  when  a 
park-keeper  tied  a  hoy,  that  was  stealing  wood,  to  a  horse's  tail, 
and  dragged  him  along  the  park  ;  when  a  master  corrected  his 
r-ervant  with  an  iron  bar  :  and  a  school-master  stamped  on  his 
scholar's  belly  ;  so  that  each  of  the  sufferers  died  ;  these  were 
justly  held  to  he  murderers,  because  the  correction,  being  exces- 
sive, and  such  as  could  not  proceed  hut  from  a  had  heart,  it  was 
equivalent  to  a  deliberate  act  of  slaughter. 

4  Black.  Where  two  deliberately  meet  to  fight,  and  one  is  killed,  suffi- 

i  Kast,p.  c.    cient  time  having  Intervened   after  the  provocation  given  for  the 
Zi2'  blood  to  cool,  it  is  murder,  not  only  in  the  person  killing,  but  in  his 

second,  and  perhaps  in  the  second  of  the  party  slain. 
1 .«'"''  p'  c*        ^  one  persuade  another  to  kill  himself,  the  adviser  is  guilty  of 

murder.     The  same,  if  he  kill  the  party  by  his  own  command. 
<t  Black.  If  one  kills  an  ofiicer  of  justice,  either  civil  or  criminal,   in  the 

execution  of  hisduty,  or  any  of  his  assistants,  endeavouring  to  con- 
serve the  peace,  or  any  private  person  endeavouring  to  suppress  an 
affray  or  apprehend  a  felon,  knowing  his  authority  or  the  intention 
with  which  he  interposes,  the  law  will  imply  malice,  and  the 
killer  shall  be  guilty  of  murder. 

With  respect  to  poisoning,  it  lias  been  enacted  "  That  all  wil- 
ful killing,  by  poisoning  of  any  person  or  persons,  done,  perpetrated, 
or  committed,  or  that  nt  any  time  hereafter  shall  be  done,  perpe- 
trated, or  committed,  shall  be  adjudged,  taken,  and  deemed  wilful 
murder,  of  malice  prepense  :  and  the  offenders  therein,  their 
aiders,  abettors,  procurers,  and  counsellors,  shall  suffer  death,  and 
forfeit  in  every  behalf,  as  in  other  cases  of  wilful  murder  of  ma- 
lice prepense/'  Sess.  10.  c.  22.  s.  I.  1  R.  L.  (JG. 

The  rule  of  the  common  law  is,  that  where  the  death  of  the 
party  is  not  immediately  consequent  upon  the  act  of  the  person 
inflicting  the  wound,  or  administering  the  potion,  and  he  lives  for  a 
year  and  a  day  thereafter,  the  person  committing  the  act,  whether 
llie  other  die  or  not,  is  in  no  manner  liable  to  a  criminal  prosecu- 
tion for  a  felony.  How  far  an  intent  to  murder  is  an  aggravation 
of  an  assault,  is  considered  under  a  different  title.  As  to  poison- 
ing with  an  intent  to  murder,  although  it  is  not  declared  to  be  a 
felony,  yet  in  the  degree  of  punishment  it  is  placed  on  a  level 
with  many  felonies  of  the  highest  description.  It  is  enacted,  "that 
every  person  who  shall  hereafter  be  convicted  of  the  offence  of 
administering,  or  causing  or  procuring  to  be  administered,  or  wil- 


HOMICIDE.  165 

irngly  acting  or  assisting  in  administering  to  any  other  person  any 
poison,  with  intent  to  murder  such  person,  and  where  such  person 
shall  not  thereof  die  in  one  year  and  a  day,  then  every  person,  so 
convicted,  shall  and  may  he  adjudged,  hy  the  court  before  whom 
MIC  conviction  in  either  of  the  said  cases  is  had,  to  imprisonment 
in  the  state  prison,  for  a  term  not  exceeding  fourteen  years."  Sess. 
.SO.  c.  29.  s.  7. 

The  s'tat.  1  Jac.  1.  c.  8.  which  has  been  copied  into  our  statute   '  E»«,  P.  c. 

2)7    2J1 

book,  declaring  stabbing  to  be  murder,  and  which  lias  brought  one  4  BI.  Com. 
species  of  manslaughter  within  the  punishment  for  murder,  has  l93' 
in  England  been  construed  to  be  only  declaratory  of  the  common 
law,  that  to  bring  a  case  within   it  there  ought  to  be  malice,  and 
that  all  circumstances  which  at  common  law  will  serve  to  justify, 
excuse,  or  alleviate,  in  a  charge  of  murder,  must  have  their  due 
weight  in  prosecutions  upon  the  statute. 

The  words  of  the  act  are,  "  If  any  person  or  persons  shall  stab 
or  thrust  any  person  or  person,  that  hath  not  then  any  weapon 
drawn,  or  that  hath  not  then  first  stricken  the  party  who  shall  so 
stab  or  thrust,  so  as  the  person  or  persons  so  stabbed  or  thrust 
shall  thereof 'die,  within  the  space  of  six  months  then  next  fol- 
lowing, although  it  cannot  be  proved  that  the  same  was  done  of 
malice  aforethought,  every  such  unlawful  killing  shall  be  adjudged, 
taken  ;md  deemed  wilful  murder  :  and  the  offenders  therein, 
ilieir  aiders,  abettors,  procurers,  and  counsellors,  shall  suffer 
death,  and  forfeit,  in  every  behalf,  as  in  other  cases  of  wilful  mur- 
der of  malice  prepense.  But  this  shall  not  extend  to  any  person 
or  persons  who  shall  kill  any  person  or  persons  in  his,  her,  or 
their  own  defence,  or  by  misfortune,  or  in  any  other  manner 
than  as  aforesaid  :  nor  to  any  person  or  persons  who,  in  keep- 
ing and  preserving  the  peace,  shall  chance  to  kill  any  person 
or  persons,  so  as  such  killing  be  not  done  wittingly,  willing- 
ly, and  of  purpose,  under  pretext  and  colour  of  keeping  the 
jit  an-  ;  nor  to  any  person  or  persons  who,  in  chastising  or 
correcting  his,  her.  or  their  child,  or  servant,  shall,  contrary  to 
his,  her,  or  their  intent  and  purpose,  chance  to  kill  such  child  or 
servant."  Sess.  10.  c.  22.  s.  '2.  1  II.  L.  67. 

Notwithstanding  the.  exceptions  particularly  mentioned  in  the   i  Fast,.?,  c. 
act.  other  cases  coming  within  the  letter  of  the  act,  and  not  co-  2i0' 
vered  by  any  of  those  exception?,  have   been  adjudged  not  to  be 
within  the  meaning  of  it.     Such  is  the  case  of  an  adulterer  stabbed 
by   the   husband  in  the  act  of  adultery  :  or   where  a  mau   kills  a 
thief  who  assaidts  his  house  ;  the  one  is  manslaughter,  the  other 
justifiable  homicide. 

The  law,  say  s  Black  slone,  has  construed  the  statute  so  favourably  4  m.  Com. 
in  behalf  of  the  subject,  and  so  strictly  when  against  him,  that  the  193<  194- 
offence  of  stabbing  now  stands  almost  upon  the  same  footing  as 
it  did  at  the  common  law.     Thus,  in  the  construction  of  this  sta- 
tute, it  hath  been  doubted,  whether,  if  the  deceased  had  struck  at 
all  before  the  mortal  blow  given,  this  does  not  take  it  out  of  the 
statute,  though  in  the  preceding  quarrel  the  stabber  had  given  the, 


H031ICIDK. 

iirst  blow  ;  and  il  seems  to  be  the  better  opinion,  that  this  is  not 
within  the  statute.  Also,  it  hath  been  resolved,  that  the  killing  a 
man  by  throning  a  hummer,  or  other  blunt  weapon,  is  not  wit!;in 
the  statute  :  and  whether  a  shot  with  a  pistol  be  so  or  not  is 
doubt-  d.  But  if  the  party  slain  had  a  cudgel  in  his  hand,  or  had 
thrown  a  pot,  or  a  bottle,  or  discharged  a  pistol  at  the  party  stab- 
bing, this  is  a  sufficient  having  a  weapon  drawn  on  his  side  within 
the  words  of  the  statute. 

4  ni.  Co-n.  At  common  law,  the  killing  of  a  master  by  his  servant,  or  of  a 
husband  by  his  wife,  is  a  crime  of  a  blacker  dye  than  the  killing  a 
mere  stranger,  or  a  person  within  any  other  social  relation,  and  was 
subjected  to  a  severer  punishment.  But  by  an  act  of  the  legislature 
of  this  state,  sess.  10.  c.  '22.  s.  3,  "  when  a  servant  killeth  his  mas- 
ter, or  a  wife  her  husband,  of  malice  prepense,  such  offences  shall 
be  deemed  and  adjudged  to  be,  and  shall  be  punished  as  murder." 
The  malicious  intent,  necessary  to  constitute  the  crime  of  mur- 
der, in  the  instances  already  alluded  to,  it  will  be  observed,  are 
cases  in  which  a  particular  person  was  designated  as  the  object  of 
that  intent,  and  in  which  the  intent  was  effectuated  by  the  de- 
struction of  the  person  against  whom  it  was  first  conceived.  But 
malice,  as  has  been  already  stated,  is  not  to  be  confined  to  a  par- 
ticular ill  will  to  the  deceased  ;  the  criminal  may  have  had  no 
one  object  in  view  on  which  to  vent  his  malevolence  ;  he  may 
have  slain  a  person  whom  he  did  not  intend  to  injure,  by  inad- 
vertence, instead  of  the  one  whose  life  he  designed  to  have  taken 
:i\vay  ;  or  he  may,  accidentally,  have  killed  a  person,  while  seek- 
ing to  do  him  lesser  injury,  or  while  prosecuting  some  other  un- 
lawful purpose  :  in  all  which  cases,  the  law  would  adjudge  the 
act  to  have  been  committed  with  malice,  either  express  or  im- 
plied. 

•Jo'''  C°m>  Thus,  where  a  man  discharges  a  gun  among  a  multitude  of  peo- 
ple, coolly  and  deliberately,  although  he  may  have  had  no  one  in- 
dividual in  view  to  injure,  yet  this  will  be  considered  as  an  indica- 
tion of  a  malignant  and  depraved'  disposition  to  perpetrate  mis- 
chief, fall  where  it  may  ;  and  this  is  further  apparent  from  the  use 
of  an  instrument  calculated  to  produce  the  greatest  possible  in- 
jury. So  where  a  man  resolves  to  kill  the  next  person  he  meets, 
and  does  so.  this  is  murder. 

;  Kast,  r.  c.  If  a  man  intending  to  kill  B.  strikes  at  him,  but  misses  him  and 
kills  C.  who  is  standing  by.  this  is  murder  ;  for  although  C.  was 
not  the  object  of  his  malice,  yet  his  death  ensued  in  consequence 
of  the  malicious  intent,  which  two  circumstances,  malice,  anil  a 
killing  in  consequence  thereof,  render  the  crime  complete.  So, 
where  one  gives  medicine  to  a  woman  for  the  purpose  of  procur- 
ing abortion,  by  which  she  is  killed,  this  is  murder,  although  the 
original  intent,  had  it  been  alone  effectuated,  would  not  have  been 
so,  but  only  a  great  misdemeanour. 

i  East,  P.  c.  If  a  man,  in  the  prosecution  of  a  felonious  intent,  accidentally 
kill  another,  it  will  be  inurd'jr  ;  as  vrhere  A-  shoots  at  the  pyultry 


HOMICIDE.  167 

oi'B.  with  a  design  to  steal  them,  and  by  Occident  kills  a  man,  it 
will  be  murder.  So,  if  lie  unlawfully,  with  malice  or  in  cool  blood, 
intend  to  beat  another,  not  designing  to  kill  him,  but  still  happens 
to  kill  him,  it  is  murder. 

So  where  divers  persons  confederate  to  do  an  unlawful  act  in  ^^M'  C 
breach  of  the  peace,  in  a  violent  and  Unnultu-jus  manner,  as  to 
commit  a  violent  disseisin  with  great  numbers,  or  to  oppose  the 
posse  commitatus,  and  a  person  is  killed  during  the  actual  strife,  it 
will  be  murder,  not  only  in  the  person  giving  the  blow  or  inflicting 
the  wound,  but  In  all  the  confederates. 

However,  where  death  ensues,  on  the  doing  of  an  unlawful  act,   2  East,  p.  c. 

OC.T      25" 

not  felonious,  or  not  directed  to  the  bodily  harm  of  any  person, 
or  not  in  breach  of  the  peace,  it  will  be  manslaughter.  But  in  all 
such  cases  the  nature  of  the  instrument,  and  the  means  used,  must 
be  kept  in  view  ;  for  if  they  be  of  a  kind  evidently  calculated  to 
produce  great  bodily  harm,  the  offence  will  be  aggravated  to  its 
highest  degree  of  criminality.  This  leads  to  the  second  division 
of  this  title. 

II.  Manslaughter. 

If  one  throws  a  stone  at  another's  horse,  and  it  happens  to  hit    *  E^I  p-  (:- 
a  man  and   kill  him,   this  will  be  manslaughter,  for  the  original 
intent  is  unlawful. 

So  if  a  person  barely  intend  to  commit  a  trespass,  as  where  A.   i  East,  P.  e, 
wantonly  shoots  at  the   poultry  of  B.  without  intending  to   steal 
them,  and  by  accident  kills  a  man,  it  will  be  manslaughter. 

If  a  person  in  breaking  an  unruly  horse,  wilfully  ride  him  among  *,^a5t' p< '  ' 
a  crowd  of  persons,  the  probable  danger  being  great  and  apparent, 
and  death  ensue  from  the  viciousness  of  the  animal,  it  is  murder. 
But  yet,  if  it  appear  clearly  to  have  been  done  heedlessly  and  in- 
cautiously only,  and  not'Avith  an  intent  to  do  mischief,  it  is  only 
manslaughter. 

These  distinctions   arise  from   the   definition  of  manslaughter,   4  com.  w;. 
which,  according-  to  Blackstone,  is  "  the  unlawful  killing  of  ano- 
ther without  malice,   either  express  or  implied  :  which  may  be 
either  voluntarily,  upon  a  sudden  heat,  or  involuntarily,  but  in  the- 
commission  of  some  unlawful  act." 

To  the  cases  already  mentioned  of  homicide  arising  from  the 
prosecution  of  an  unlawful  act,  may  be  added  those  in  which  a 
person  is  slain  in  some  unlawful  sport,  as  where  one  of  the  com- 
batants in  a  public  boxing  match  happens  to  kill  another,  it  wi.l 
be  manslaughter;  for  here  the  intention  of  the  parties  is  not  in- 
nocent, each  being  careless  of  what  hurt  may  be  given,  provided 
the  promised  reward  or  applause  be  obtained.  So,  where  per- 
sons wore  engaged  in  the  sport  of  cock-throuing,  and  one  missed 
his  aim,  and  killed  a  child  who  was  looking  on,  Mr.  Justice  Foster 
ruled  it  manslaughter. 

v.  hich  ir,;)':!  iYr(|rtPntly  fnruishes  an  alleviation  of  thn 


168 


4  Black. 
Com.  l-r.. 
132. 


!  Kast,  P.  C. 

234,235. 


i  East.  P.  C. 

238,  239. 


4   Blaili. 
Curu.  18^. 


HOMICIDE. 

guilt  of  homicide,  is  when  the  killing  is  in  consequence  of  sonic 
sudden  heat  on  a  provocation  given  !>y  the  deceased. 

If  upon  a  sudden  quarrel  two  persons  fight,  and  one  of  them 
kills  the  other,  this  is  manslaughter:  and  so  it  is,  if  they,  upon 
such  an  occasion,  gu  out  and  light  in  a  field  ;  for  this  is  one  con- 
tinued act  of  passion  :  and  the  law  pays  that  regard  to  human 
frailty,  as  not  to  put  a  hasty  and  deliberate  act  upon  the  same 
footing  as  to  guilt.  So  also  if  a  man  he  greatly  provoked,  as  Ity 
pulling  his  nose,  or  other  great  indignity,  and  immediately  kills  the 
aggressor,  though  this  is  not  excusahle  se  Jifeiidi'iulo,  since  then- 
is  no  absolute  necessity  for  doing  it  to  preserve'himself,  yet  nei- 
ther is  it  murder,  for  there  is  no  previous  malice  ;  but  it  is  man- 
slaughter. But  in  this,  as  in  every  other  case  of  homicide,  upon 
provocation,  if.  there  be  a  sufficient  cooling  time  for  passion  to 
subside,  and  reason  to  interpose,  and  the  person  so  provoked  after- 
wards kills  the  other,  this  is  deliberate  revenge,  ami  not  heat  of 
blood,  and  accordingly  amounts  to  murder.  So,  if  a  man  takes 
another  in  the  act  of  adultery  with  his  wile,  and  kills  him  directly 
upon  the  spot,  it  is  manslaughter. 

But  not  any  trivial  provocation,  which  in  point  of  law  amouuls 
to  an  assault,  or  even  a  blow,  will  of  course  reduce  the  crime  of 
the  person  killing,  to  manslaughter.  For  where  the  punishment 
inflicted  for  a  slight  transgression  of  any  sort  is  outrageous  in  in 
nature,  either  in  the  manner  or  the  continuance  of  it,  it  is  to  be  con- 
sidered HS  an  indication  of  malico  ;  and  therefore  the  crime  will 
amount  to  murder,  notwithstanding  such  provocation.  In  such 
cases,  if  the  party  intending  the  chastisement,  use  an  instrument 
in  its  nature  likely  to  endanger  life,  he  will  be  guilty  of  murder: 
but  if'it  be  not  of  a  deadly  nature,  nor  urged  with  brutal  violence, 
in  bhort,  if  the  act  may  fairly  bfv  attributed  to  an  intention  to  cor- 
rect, rather  than  to  a  cruel  and  implacable  malice,  founded  in  a 
Hjiirit  of  revenge,  it  will  amount  only  to  manslaughter. 

If  the  provocation  be  such  as  the  law  presumes  might  in  human 
frailty  heat  the  blood  to  a  proportionable  degree  of  resentment, 
and  keep  it  boiling  to  the  moment  of  the  fact,  this  heat  will  ex- 
tenuate the  guilt  of  the  part}'  acting  under  its  adequate  influence, 
even  though  he  made  use  of  a  deadly  weapon.  The  same  c\ 
tennation  will  apply  even  to  lesser  provocations,  where  the  in- 
strument or  force,  not  being  in  their  own  nature  dangerous,  w.  M; 
so  applied  as  to  induce  a  reasonable  presumption  that  correction, 
and  not  destruction,  was  intended  to  be  e flee  ted. 

III.   Homicide  not  J'alvnioiis. 

By  the  common  law,  a  distinction  was  made  between  homicide., 
justifiable,  or  excusable  :  if  in  the  former  case  the  jury  found  the 
homicide  justifiable,  the  parly  was  entitled  to  a  general  acquittal; 
in  the  case  oi' excusable  homicide,  In-  was  subjected  to  a  forfeiture 
of  his  chattel,  which  however  would  always  be  remitted,  on 


HOMICIDE.  169 

procuring  a  pardon  and  writ  of  restitution,  grantable  as  matter  of 
course  and  right.  But  by  the  laws  of  this  state,  (sess.  10.  c.  22.) 
the  prisoner  is  in  both  cases  entitled  to  a  general  acquittal. 

The  following  are  the  instances  recited  by  the  statute,  in  which 
the  party  is  to  be  acquitted,  and  comprehend  nearly  all  the  cases 
of  homicide  not  felonious. 

Where  any  evil  disposed  person  or  persons  shall  attempt  felo 
niously  to  rob  or  murder  any  person  or  persons,  in  or  nigh  any 
highway,  or  in  his  or  their  mansion-house  or  dwelling  place,  or 
shall  feloniously  attempt  to  break  any  dwelling-house  in  the  night, 
and  shall  happen,  in  his  or  their  being  in  such  their  felonious  at- 
tempt, to  be  slain  by  him,  her  or  them,  whom  the  said  evil  doers  shall 
so  attempt  to  rob  or  murder,  or  by  any  person  or  persons  being  in 
the  dwelling-house,  which  the  same  evil  doers  shall  attempt  burgla- 
riously (o  break  by  ni^ht.  L.  N.  Y.  sess.  10.  c.  22.  s.  4. 

Where  the  party  indicted  killed  the  person  or  persons  for  whose 
death  he,  she,  or  they,  is,  are,  or  shall  be  indicted,  in  his,  her,  or 
their  own  defence,  or  by  misfortune,  s.  5. 

Where  the  party  indicted  happened  to  kill  the  person  or  per- 
sons for  whose  death  he  is  indicted,  in  attempting  or  endeavouring 
by  any  lawful  ways  or  means  to  apprehend,  take,  or  arrest  the 
same  person  for  any  treason  or  felony,  or  in  the  lawful  defence  of 
his,  her,  or  their  husband,  wife,  parent,  child,  master,  mistress,  or 
servant,  or  in  the  suppressing  any  riot,  or  in  keeping  and  preserv- 
ing the  peace,  or  in  lawfully  chastising  and  correcting  a  child  or 
servant,  s.  6. 

Homicide  may  be  justifiable  as  having  been  done  in  pursuance  4  Black, 
of  the  express  command  of  the  law;   as  where  a  judge  passes  sen-   J^'iiiale 
tence  of  death  upon  a  convicted  criminal,  and  gives  the  warrant  t-  c.  497. 
for  his  execution  ;  or  a  sheriff  causes  the  warrant  to  be  executed,  p.  0.332,  &c! 
or  himself  puts  the  malefactor  to  death.     But  the  law  must  require  £","^'5!^  °'" 
it,  otherwise  it  is  not  justifiable  :  therefore,   wantonly  to  kill  the  207. 
greatest  of  malefactors,  a  felon,  or  a  traitor,  attainted  or  outlawed, 
deliberately,   uncompelled  and  extrajudicially,  is  murder.     And 
further,  if  judgment  of  death  be  given  by  a  judge  not  authorized 
by  lawful  commission,   and  execution  is  done   accordingly,  the 
judge  is  guilty  of  murder.     Also,  such  judgment,  when  legal,  must 
be  executed  by  the  proper  officer,  or  his  appointed  deputy  ;  for 
no  one  else  is  required  by  law  to  do  it,  which  requisition  it  is  that 
justifies  the  homicide.     If  another  person  doth  it  of  his  own  head, 
it  is  held  to  be  murder,  even  though  it  be  the  judge  himself. 

It  is  also  justifiable  when   committed  for  the  advancement  of  JBtocjio 

•  .          Com.  17V, 

public  justice.     As,  I.   Where   an  officer,  in  the  execution  of  his  130.  i  »aie.f 

office,  either  in  a  civil  or  criminal  case,  kills  a  person  that  assaults  4gs  '4*0  • 

and  resrsts  him.     2.  If  an  officer,  or  any  private  person,  attempts  i  East,  P.  c. 

to  take  a  man  charged  with  felony,  and  is  resisted,  and  in  the  en-  principle*  Of 

deavour  to  take  him,  kills  him.     See  the  6th  sect,  of  the  act,  cited  ?™»l  taw 
supra.     3.  In  case  of  a  riot  or  rebellious  assembly,  the  officers,  in 
t*ndcavourins  to  disperse  the  mob,  are  justifiable  in  killing  them 


170 


4  Black. 
Cain.  184. 


4  Black. 

Cfcu.  182. 


1  East,  P.  C. 

298. 

4  Black. 

COiii.  182. 


MLSliAND  ANU  AV1KE. 

K  Vvhivc  luc.  pi'irioiiors  in  a  gaol,  or  going  to  a  gaol,  assault  the 
gaoler  or  oflicer,  and  he  in  his  defence  kills  any  of  them,  it  is  jus- 
tifiable for  the  sake  of  preventing  an  escape.  But  in  all  these 
cases,  there  must  be  an  apparent  necessity  on  thu  officer's  side, 
viz.  that  the  party  could  not  be  arrested  or  apprehended,  the 
riot  could  not  be  suppressed,  the  prisoners  could  not  be  kept  in 
hold,  unless  such  homicide  were  committed  :  otherwise,  without 
such  absolute  necessity,  it  is  not  justifiable. 

Homicide  in  self  defence,  is  distinguishable  from  that  spt 
of  homicide  which  is  occasioned  by  the  endeavour  to  prevent  the 
commission  of  a  crime,  as  robbery,  murder,  or  burglary,  the  in- 
stances mentioned  in  the  act  just  referred  to,  in  this,  that  it  is  tha; 
kind  of  self-defence  whereby  a  man  may  protect  himself  from  an 
assault,  or  the  like,  in  the  course  of  a  sudden  brawl  or  quarrel,  by 
killing  him  who  assaults  him  ;  but  this  excuse  can  only  avail  in 
sudden  and  violent  cases,  in  which  it  appears  that  the  slayer  had 
no  other  possible,  or  at  least,  probable  means  of  escaping  from  hi* 
assailant. 

Homicide  by  misfortune,  is  where  a  man  doing  a  lawful  acl. 
without  any  intention  of  hurt,  unfortunately  kills  another  :  as  when- 
a  man  is  at  work  with  a  hatchet,  and  the  head  thereof  fliee  off  and 
kills  a  slander- by. 

It  must  however  be  kept  in  view,  that  in  all  cases  in  which  tin- 
law  justifies  a  homicide,  by  reason  of  its  being  committed  in  tin- 
advancement  of  justice,  as  by  an  officer  executing  a  civil  or  crimi- 
nal process,  or  in  preserving  the  peace,  or  in  chastising  a  child  or 
servant,  the  degree  of  force  and  violence  used,  in  one  instance, 
must  not  be  excessive,  or  more  than  adequate  to  accomplish  tin- 
purpose  intended  ;  for  if  a  riot  can  be  suppressed,  or  an  escape 
prevented,  by  a  slight  degree  of  coercion,  there  can  be  no  excun- 
for  having  recourse  to  violent  means.  So  in  the  other  instance, 
if  the  chastisement  be  in  a  cruel  or  unusual  mannor,  or  with  au 
instrument  deadly  in  its  nature,  and  death  ensue,  the  law  will  no! 
excuse  it,  but  it  will  be  either  murder  or  manslaughter,  according 
to  the  circumstances  of  the  case. 


HUSBAND  AND  WIFE. 


1  Black. 
Com.  439. 
Ventou  v. 
Reed, 
4  John*. 
Htp.  5i. 


Fenton  v 
K^e.1. 
4  Julius. 
iU-p.  i j. 


No  formal  solemnization  of  marriage  is  requisite,  but  u  coutraci 
of  marriage  per  verba  deprccsenti,  that  is,  by  words  of  the  present 
tense,  amounts  to  an  actual  marriage,  and  is  as  valid  as  if  made  in 
facie  ecclesia:,  that  is,  in  the  presence  of  the  church,  or  solemnized 
with  ecclesiastical  ceremonies. 

Proof  of  an  actual  marriage  is,  in  most  instances,  unnecessary  U» 
be  made  :  it  is  only  requisite  in  prosecutions  for  bigamy,  and  in 
actions  for  criminal  conversation.  A  marriage  may  be  proved  in 
other  cu3e>3,  from  cohabitation,  reputation,  acknowledgment  tr 


HUSBAND  AND  WIFE.  1  7  J 

'lie  parties,  reception  in  the  family, and  other  circumstances  from 
which  a  marriage  may  be  inferred. 

In  those  cases  where  the  debt  or  cause  of  action  will  survive  to  '  B»c-  A'»r- 

499. 

the  wife,  the  husband  and  wife  are  regular!)'  to  join  in  bringing 
an  action  ;  as  in  recovering  debts  due  to  the  wife  before  mar- 
riage, in  actions  relating  to  her  freehold  or  inheritance,  or  injuries 
done  to  her  person. 

Where  the  wife  cannot  maintain  an  action  for  the  same  cause,  Saiu.  114. 
if  she  survive  her  husband,  the  action  must  be  brought  by  the  hus-  airs 
baud  alone,  as  in  the  case  of  an   action  of  indebitatus  assumpsit  -«Jw^'r* 
fur  the  labour,  &ic.  of  the  wife,  during  the  coverture  ;  for  in  con- 
templation of  law,  the  wife  is   considered   as  the  servant  of  the 
husband,  and  he  is  entitled  to  her  earnings,  and  such  earnings  shall 
not  survive  to  the  wife,  but  go  to  the  personal  representative  of 
the  husband.     But  where  the  wife  is  the  meritorious  cause  of  thr 
action,  as  where  the  defendant  has  derived  profit  or  advantage  from 
her  labour  or  skill,  and  an  express  promise  of  remuneration  is  made 
by  the  defendant  to  the  wife,  in  such  case,  the  husband  and  wife 
may  join  in  the  action.     In  all  cases  where,  the  wife  shall  not  have 
the  thing  when  it  is  recovered,  either  solely  to  herself,  or  jointly 
with  her  husband,   but  the  husband  only  shall  have  it,  there  the 
husband  shall  sue  alone. 

In  personal  actions  for  the  recovery  of  damages  only,  (other  than  2  Mod.  270. 
actions  in  respect  of  personal  wrongs   to  the  wife,)  the  husband  ^gW'N*p* 
and  wife  may  join  ;  or  the  husband  may  sue  alone,  for  he  alone 
may  release  such  action. 

If  a.  feme  covert  bring  an  action  in  her  own  name,  without  her  hus-  i  Bac.  Ab>. 
band  being  joined,  the  defendant  may  plead  the  coverture  of  the  Rep.  earT 
plaintiff  in  abatement.     So,  if  a  writ  be  brought  against  a  feme 
covert,  as  sole,  she  may  plead  her  coverture  in  abatement  ;  but  if 
she  neglect  to  do  it,  and  there  be  a  recovery  against  her  as  a  feme 
sole,  the  husband  may  avoid  it  by  writ  of  error. 

If  a  woman  commit  theft,   burglary,   or   other  civil   offences   4  Bl.  Com. 

•       ..  *i         i  <•  •    ^  .1  •  ruiij  28,29.  1  Halt  , 

against  the  laws  of  society,  by  the  coercion  of  her  husband,  or  P.c.  45,47. 
even  in  his  company,  which  the  law  construes  a  coercion,  she  is  i  """kg  pj^' 
not  guilty  of  any  crime  ;  being  considered  as  acting  by  compul-  11,12,' is. 
sion,  and  not  of  her  own  will.  But  this  rule  admits  of  an  excep- 
tion in  crimes  that  are  mala  in  se,  and  prohibited  by  the  law  of 
nature,  as  murder,  and  the  like  :  not  only  because  these  are  of  a 
deeper  dye,  but  also,  since  in  a  state  of  nature  no  one  is  in  sub- 
jection to  another,  it  would  be  unreasonable  to  screen  an  offender 
from  the  punishment  due  to  natural  crimes,  by  the  refinements 
and  subordinations  of  civil  society.  In  treason  also,  no  plea  of 
coverture  shall  excuse  the  wife  ;  no  presumption  of  the  husband's 
coercion  shall  extenuate  her  guilt :  and  in  inferior  misdemeanours, 
we  may  remark  another  exception  ;  that  a  wife  may  be  indicted 
with  her  husband,  for  keeping  a  brothel  ;  for  this  is  an  offence 
touching  the  domestic  economy  or  government  of  the  house,  in 
which  the  wifr1  has  a  priiripnl  share  :  and  5s  also  such  nn  offence 


172  HUSBAND  AND  WIFE. 

as  the  law  presumes  to  be  generally  conducted  by  the  intrigues  oJ' 
the  female  sex.  And  in  all  cases  where  the  wife  offends  alone, 
without  the  company  or  coercion  of  her  husband,  she  is  respon- 
4Bum'sJust.  sible  for  her  offence,  as  much  as  any  feme  sole.  If  she  be  guilty 
of  a  forcible  entry,  riot,  trespass,  &c.  the  fine  shall  be  set  upon 
her  alone,  and  not  be  levied  on  her  husband  ;  but  after  his  death,  it 
may  be  levied  upon  the  Avife  herself,  and  she  alone  shall  suffer 
imprisonment,  or  other  corporal  pain. 

we»verC«)T'  ^e  husband  is  answerable  for  a  forfeiture  under  a  penal 
Johns.  Hep.  statute  incurred  by  his  wife. 

p47'    R  12Q        The  husband   is   liable    for  the  debts  of  his  wife  contracted  by 

121.  Angel  v!  her  before  the  coverture,  and  the  husband  and  wife  may  be  sued 

johii"'Rep.     f°r  such  debts  during  the  coverture  :   but  the  husband  cannot  be 

149.    s,!«r.    SUed  alone  for  the  debt  of  his  wife  contracted  before   their  inar- 

i  bainpb.        riage.     If  these  debts  are  not  recovered  against  the  husband  and 

]89>  wife,   during  the   life   time   of  the  wife,  the  husband  cannot  bo 

charged  for  them,  either  at  law   or  in  equity,  after  the  death  of 

the  wife.     But  if  the  husband  die  before  the  wife  they  will  survive 

against  her. 

Seiw.N.r.  All  the  personal  estate  of  which  the  wife  is  possessed  in  her 
o'wn  right,  is  by  the  marriage  vested  absolutely  in  the  husband. 
Notwithstanding  the  law  thus  divests  the  wife  of  all  her  personal 
property,  she  cannot  bind  her  husband  by  any  contracts,  even  for 
necessaries  suitable  to  her  degree  and  estate,  without  the  assent 
of  her  husband,  either  express  or  implied. 

M'Catehenv.  Cohabitation  is  evidence  of  the  husband's  assent  to  contracts 
w'ns'1  if '  / l  maa<e  by  his  wife  for  necessaries,  and  it  can  be  repeled  only  by 
2si.  express  notice  of  previous  dissent,  or  notice  not  to  trust  her. 

444.  i  issp!  And  if  the  husband  causelessly  turns  away  his  wife,  or  deserts 
441'  t  ]Esp'  'ier'  O1  compels  her  by  ill  usage  or  severity  to  leave  him,  he  gives 
Raj-m.  1000.  her  credit  wherever  she  goes,  and  must  pay  for  necessaries  for  her, 
SP!W.'  6w!'r  fr°nl  which  he  cannot  exempt  himself  by  any  notice  not  to  trust 
293«  her.  But  cohabitation  is  presumptive  evidence  only,  of  such 

assent,  and  it  may  be  rebutted  by  contrary  evidence.  If  the 
wife  elope  from  her  husband,  whether  with  or  without  an  adul- 
terer, though  the  tradesman  has  no  notice  of  the  elopement,  if  he 
give  credit  to  her,  even  for  necessaries,  the  husband  is  not  liable. 
Or  if  the  husband  turn  her  away  on  account  of  her  having  com- 
mitted adultery,  then  he  will  not  be  liable.  If,  however,  the  wife 
elope  without  an  adulterer,  and  afterwards  offer  to  return,  and 
the  husband  refuses  to  receive  her,  his  liability  for  her  contracts 
for  necessaries  is  revived  from  that  time,  notwithstanding  a  gen- 
eral notice  not  to  trust  her. 

ii'tntchenv.  But  if  the  wife,  having  eloped  without  an  adulterer,  do  not 
Johnl^Rt-p!1  °^er  t°  return  to  her  husband,  he  will  not  be  liable  :  for  the  duties 
S5J-  of  the  wife,  while  cohabiting  with  the  husband,  form  the  considera- 

tion of  his  liability  for  her  necessaries.  Fie  is  bound  to  provide 
for  her,  in  his  family ;  and  while  he  is  guilty  of  no  cruelty 
towards  her,  and  is  willing  to  provide  her  a  home,  and  all  necessa- 
ries ifere,  he  is  not  bound  to  furnish  them  elsewhere.  And  all 


HUSBAND  AND  WIFE.  173 

Hi,  supplying  the  necessities  of  a  married  woman,  separate 
from  her  husband,  are  hound  to  make  inquiries  as  to  the  cause 
nnd  circumstances  of  the  separation,  or  they  give  credit  at  their 
peril. 

If  a  husband  and  wife  part  by  consent,  and  the  husband  secures  Baker  v.  Bar 
to   her  a  separate   maintenance,  suitable   to  his  condition  in  life,  R^p.Tj.0  ' 
and  pays  it  according  to  agreement,  he  is  not  liable  for  articles  Fenner  r. 
furnished  to  his  wife,  not  even   for  necessaries,   and  the  general   ioJohn«. 
reputation  of  the   separation   will  be   sufficient.     But  where  the  ReP-  38 
agreement  on  the  part  of  the  husband,  to  pay  a  certain  sum  to  his 
wife,  or  a  separate  maintenance,  is   not  reduced   to   writing,  and 
there  is  no  evidence  of  any  payment  having  been  made  by  him 
to  her,  he,  will  be  liable  for  goods  furnished  to  his  wife  during  the 
separation. 

So  if  he  fail  in  paying  the  stipulated  allowance  to  his  wife,  h«  2  EOS.  ana 
will  ba  liable  for  necessaries  furnished  her.  148. 

A  feme  covert  cannot  bring  an  action  or  be  impleaded  as  a  feme   a  Term  Rep 
sole,  while  the  relation  of  marriage   subsists,  notwithstanding  she 
lives  separately  from  her  husband,  and  has  a  separate  maintenance 
secured  to  her  by  deed. 

But  where  the  husband  is  civilly  dead,  as  if  he  he  banished,  or  co.Litt.i3~ 
be  sentenced  to  the  state  prison  for  life,  the  wife  acquires  a  sepa-  MatterofDr 
rate  character,  and  may  sue  or  be  sued  nan  feme  sole.  io"j^'i 

And  where  the  husband  of  a  married  woman,  a  foreigner,  had  Rep.  232. 
gone  abroad,  and  not  since  returned,  and  his  wife  had  kept  house  Waifordr. 
and  paid  bills  for  goods  furnished  on  her  own  account,  and  in  her  ££„„"* ll' 
own  name.  Lord   KENYON  ruled,   that  she  was  liable  for  goods  2E?p.«5>. 
sold  and  delivered  to  her.     His  lordship  said,  the  present  case, 
came  within  the  principle  of  the  old  common  law,  where  the  hus- 
band had  abjured  the  realm.     If  the  husband  had  been  absent  for 
sometime,  and  then  returned,  and  paid  bills  contracted  by  the  wife 
in   his  absence,  and  again  left  the  kingdom,  he  should  hold  the 
wife  not  liable ;  but  here  was  a  desertion  of  the  kingdom,  and  an 
absence  of  some  years  ;  he  wras  no  longer  domiciled  here,  and  in 
the  interval  his  wife  was  supplied  with  these  articles;  if  she  was 
not  to  be  held  liable  for  debts  contracted  under  these  circumstan- 
ces, she  might   be   starved.     And  in   another  action   against  the  pranks  v. 
same  defendant,  Lord  KENYON  said,  had  this  been  the  case  of  an  p"^ess de  '* 
Englishman,  who  might  be  presumed  to  have  the  animus  rfver-  SE*p.M7. 
tendi,  (or,  intention  to  return,)  it  might  be  different ;  but  here  is  a 
complete  desertion  of  the  country,  and  she  must  be  liable. 

The  contract  of  marriage  may  be  dissolved  by  a  divorce  tivin-  Sen.  36.  e. 
culo  niatrtmonii,  or  the  bond  of  marriage,  by  decree  of  the.  chan-  {,?"  2  R    " 
cfillor,  on  account  of  adultery  in   either   party.     There  is  also  a 
qualified   species   of  divorce,  a  divorce  a   mensa  et  thoro,    from 
bed  and  board,  which  is  granted  on  account  of  the  husband's  ill 
treatment  of  his  wife,  and  may  be  cither  perpetual,  or  for  a  limited 
time,  and  during  the  continuance  of  which,  the  wife  will  be.  en- 
titled to  her  support  and  maintenance  from  the  husband,  or  out  of 
his  property,  in  such  manner  as  shall  be-  appointed  }>y  thf  chan 


J74  HL'&BAMJ   AM)    VVIKK. 

cellor.       But  a  divorce  a  mensa  et  thoro  will  not  justify  the 
riage  of  either  party  living,  the  Cornier  husband  or  wilV. 

Matt*rof  The  civil  death  of  either  party  is  a  dissolution  of  the  contract ; 

icTo'infi.        as  where  husband  or  wife  is  sentenced  to  the  state  prison  for  life, 

Rep. 232.  an(j  lnc  ather  party  may  marry  again;  which  second  marriage 
will  not  be  annulled,  or  its  validity  affected,  by  a  subsequent  par- 
don of  the  offender. 

:  Hawk.  P.         A  feme  covert  cannot  be  guilty  of  larceny  by  taking  the   gdod? 

c.c.33.  s.  19.  of  her  husband,  neither  can  a  stranger  commit  larceny  by  taking 
the  goods  of  the  husband  by  delivery  of  his  wife. 

i  Etc.  Abr.  If  the  wife  has  been  taken  in  execution  upon  a  judgment  ob- 
tained against  her  and  her  husband,  she  cannot  be  discharged. 

4Bnrm'Just.  If  a  woman  who  is  a  servant  shall  marry,  yet  she  must  serve 
out  her  time,  and  the  husband  cannot  take  her  out  of  her  masters 
service.  Also,  if  a  married  man  and  his  wife  bind  themselves  to 
serve,  they  shall  be  compelled  to  serve  according  to  their  cove- 
nant or  agreement. 

:  El.Com.  Husband  and  wife  cannot  be  witnesses  for  or  against  each  other. 

Abr. 57*.  But  where  the  offence  is  directly  against  the  person  of  the  wife, 
this  rule  has  been  usually  dispensed  with;  and  therefore,  in  case  a 
woman  be  forcibly  taken  away  and  married,  she  may  be  a  wit- 
ness against  such  her  husband,  in  order  to  convict  him  of  felony. 
And  although  the  wife  has  been  divorced,  she  is  not  a  witness  as 
to  transactions  during  the  existence  of  the  marriage. 

1  Esp.^i42.         Where  a  wife  acts  for  her  husband  in  any  business  by  his  au- 

>tnner  ».       thority,  he  thereby  adopts  her  acts,  and  must  be  bound  by  any  ad- 

icJoh'ns          mission  or  acknowledgment  made  by  her  respecting  that  business. 

Rep.  33.  A   wife  may   demand    surety  of  the   peace   against   her   hus- 

i  H»wk.  P.  c.  band,  threatening  to  beat  her  outrageously,  and   a   husband  also 

i  Burr! 651.     may  have  it  against  his  wife. 

Where  a  husband  by  articles  of  separation,  under  a  large  pen- 
alty, covenanted  never  to  disturb  his  wife,  or  any  person  with 
whom  she  should  live  ;  the  court  held  this  agreement  to  be  a  for- 
mal renunciation  by  the  husband  of  his  marital  right  to  seize  her, 
or  force  her  back  to  live  with  him.  And  they  said,  that  any  at- 
tempt of  the  husband  to  seize  her  by  force  and  violence  would  b" 
i  breach  of  the  peace. 


IMMORALITY. 

I.  Immorality  at  Common  Law. 
II.  Blasphemy. 

III.  Profaning  Sunday,  and  disturbing  religions  iff 

IV.  Cursing  and  Swearing. 

V.  Prosecution  and  Conviction. 

I.  Immorality  at  Common  Late. 
All  scandalous  and  open  breaches  of  inoraVity.  exhibited  in  tin- 


IMMORALITY.  175 

face  of  the  people,  are  indictable  at  common  law,  and  punishable 
by  fine  and  imprisonment.      Such  was  the  case  of  one  who  expo- 
sed himself  naked  to  the  public  view  from  a  balcony.      So,  where    3  Burr.  1433. 
a  man  assigned  over  his  wife  to  another  man. 

In  a  late  English  case,  it  was  held  an  indictable  offence,  fora  man   ius  v.  Crur. 
to  undress  himself  on  the  beach  and  bathe  in  the  sea  near  inha-    **"•     . 

2  Caunpo.  39  * 

bited  houses,  from  which  he  might  have  been  distinctly  seen. 

The  offence  of  keeping  a  bawdy  house  is  indictable  as  a  com-    1  Hawk.   c. 
uion  nuisance,  not  only  in  respect  of  its  endangering  the  public 
peace,  by  drawing  together  dissolute  and  debauched  persons,  but 
also  in  respect  of  its  apparent  tendency  to  corrupt  the  manners 
of  both  sexes  by  such  an  open  profession  of  lewdness. 

And  upon  information  given  to  a  constable  that  a  man  and  wo-  s  Burnt' Jui;. 
man  are  in  adultery  or  fornication  together,  or  that  a  man  and  wo-  2  Hawk,  p.c, 
man  of  evil  report  are  gone  lo  a  suspected  house  together  in  the  c.  io.s.  34. 
night,  the  officer  may  take  company  with  him,  and  if  he  find  them 
so,  he  may  carry  them  before  a  justice,  to  find  sureties  of  the  good 
•iehaviom-.     And  a  man  may  be  bouod  to  his  good  behaviour  for   i  Hawk.P.  t 
many  causes  of  scandal  which  give  him  a  bad  fame,  as  being  con-   c-8liS-  - 
trary  to  good  manners  onlyt  as  for  haunting  bawdy  houses  with 
-.vomen  of  bud  lame,  or  for  keeping  bad  women  in  his  own  house. 

II.  Blasphemy. 

);:,i-|>hemy  is  an  offence  at  common  law,  and  how  far  it  is  to 
ye  deemed  so,  within  this  state,  will  appear  from  the  following 
case  : 

Ruggles  was  indicted  at  the  sessions  in  Washington  county,  for  that   People  Y, 
te  did  wickedly,  malicioHsly,  and  blasphemously  utter,  and  with  a   8  j<ftfnt!' 
ioud  voice  publish,  in  the  presence  and  hearing  of  divers  good  and   Rep-290 
Christian  people,  &c.  of,  and  concerning  the  Christian  religion,  and 
of  and  concerning  JESUS  CHRIST,  the  false,  scandalous,  malicious, 
and  blasphemous  words  following,  to  wit:  "  Jesus  Christ  was  a 
bastard,  and  his  mother  must  be  a  whnre."     The  indictment  was 
removed  into  the  court  of  oyer  and  terminer  ;  the  defendant  was 
found  guilty,   and  sentenced  to  be  imprisoned  for  three  months, 
and  to  pay  a  fine  of  five  hundred  dollars.     The  record  was  then 
removed  into  the  supreme  court,  and  the  judgment  below  affirmed. 
The  following  extracts  from  the  opinion  of  the  court,  delivered  by 
KE.NT,  Ch.  J.  will,  I  trust,  be  sufficient  to  satisfy  the  reader  as  to 
law  on  the  subject,  and  the  grounds  on  which  the  court  pro- 
in  forming,  their  decision. 

The  language  used  by  the  defendant  was  blasphemous,  not  only 
in  u  popular,  but  in  a  legal  sense  ;  for  blasphemy,  according  to 
the  most  precise  definitions,  consists  in  maliciously  reviling  God, 
or  religion,  and  this  was  reviling  Christianity  through  its  author. 
The  authorities  show,  that  blasphemy  against  God,  and  contume- 


J76 


Hous  reproaches  aiid  profane  ridicule  of  Christ,  or  the  holy  scrip- 
tures, (which  are  equally  treated  as  blasphemy,)  are  offences  pun- 
ishable at  common  law,  whether  uttered  by  words  or  writings. 
The  consequences  may  be  less  extensively  pernicious  in  the  one 
ease  than  in  the  other,  but  in  both  instances,  the  reviling  is  still 
.in  offence,  because  it  tends  to  corrupt  the  morals  of  the  people, 
and  to  destroy  good  order.  Such  offences  have  always  been  con- 
sidered independent  of  any  religious  establishment,  or  the  right? 
of  the  church.  They  are  treated  as  affecting  the  essential  inte- 
rests of  society.  Though  the  constitution  has  discarded  religious 
establishments,  it  does  not  forbid  judicial  cognizance  of  those  of- 
fences against  religion  and  morality  which  have  no  reference  to 
any  such  establishment,  or  to  any  particular  form  of  government. 
but  are  punishable  because  they  strike  at  the  root  of  moral  obli- 
gation, and  weaken  the  security  of  the  social  ties.  The  object  of 
the  38th  article  of  the  constitution  was  to  "  guard  against  spiritual 
oppression  and  intolerance,''1  by  declaring,  that  "  th«'  free  exercise 
and  enjoyment  of  religious  profession  and  worship,  without  discri- 
mination or  preference,  should  forever  thereafter  be  allowed 
within  this  state,  to  all  mankind."  This  declaration  never  meant 
to  withdraw  religion  in  general,  and  with  it,  the  best  sanctions  of 
moral  and  social  obligation,  from  all  consideration  and  notice  oi 
the  law.  To  construe  it  as  breaking  down  the  common  law  bar- 
riers against  licentious,  wanton,  and  impious  attacks  upon  Chris- 
tianity itself,  would  be  an  enormous  perversion  of  its  meaning. 
The  proviso  guards  the  article  from  such  dangerous  latitude  of 
construction,  when  it  declares  that  "  the  liberty  of  conscience 
hereby  granted,  shall  not  be  so  construed  as  to  excuse  acts  of  li- 
centiousness, or  justify  practices  inconsistent  with  the  peace  and 
safety  of  this  state."  The  preamble,  and  tills  proviso,  are  a  spe- 
cies of  commentary  upon  the  meaning  of  the  article,  and  they 
sufficiently  show,  that  the  framers  of  the  constitution  intended 
only  to  banish  test  oaths,  disabilities,  and  the  burdens,  and  some- 
times the  oppressions  of  church  establishments  ;  and  to  secure  to 
the  people  of  this  state,  freedom  from  coercion,  and  an  equality 
of  right  on  the  subject  of  religion.  That  this  was  the  meaning 
of  the  constitution,  is  further  confirmed  by  a  paragraph  in  a  pre- 
ceding article,  which  specially  provides,  that  such  parts  of  the 
common  law  as  might  be  construed  to  establish,  or  maintain  any 
particular  denomination  of  Christians,  or  their  ministers,  was  there- 
by abrogated.  The  legislative  exposition  of  the  constitution  is 
conformable  to  this  view  of  it.  Christianity,  in  itsenlarged  sense, 
as  a  religion  revealed  and  taught  in  the  Bible,  is  not  unknown  to 
our  law  ;  being  recognized  in  the  acts  for  preventing  immorality, 
and  concerning  oaths.  Surely,  then,  we  are  bound  to  conclude,  that 
wicked  and  malicious  words,  writings,  and  actions,  W7hirh  go  to 
vilify  those  gpspels,  continue,  as  at  common  law,  to  be  an  offence 
'.gainst  the  public  peace  and  .safety. 


IMMORALITY.  177 

fll.  Profanation  of  Sunday,  and  disturbing  Religious  Meetings. 

By  the  act  for  suppressing  immorality,  it  is  provided,  "  that 
there  shall  be  no  travelling,  servile  labouring,  or  working,  (works 
of  necessity  and  charity  excepted,)  shooting,  fishing,  sporting,  play- 
ing, horse-racing,  hunting,  or  frequenting  of  tippling-houses,  or  any 
unlawful  exercises  or  pastimes,  by  any  person  or  persons  within 
this  state,  on  the  first  day  of  the  week,  commonly  called  Sunday  : 
and  that  every  person,  being  of  the  age  of  fourteen  years  or  up- 
wards, offending  in  the  premises,  shall,  for  every  such  offence, 
forfeit  and  pay,  to  the  use  of  the  poor  of  the  city  or  town  where 
such  offence  shall  be  committed,  the  sum  of  one  dollar.  And  that 
no  person  shall  expose  to  sale  any  wares,  merchandise,  frujt,  herbs, 
goods  or  chattels,  upon  the  first  day  of  the  week,  commonly  called 
Sunday,  except  small  meat,  and  milk,  and  fish,  before  nine  of  the 
clock  in  the  morning,  upon  pain  that  every  person  so  offending 
shall  forfeit  the  same  goods,  so  exposed  to  sale,  to  the  use  of  the 
poor  of  the  city  or  town  where  such  offence  shall  be  committed  ; 
and  if  any  person  offending  in  any  of  the  premises,  shall  be  there- 
of convicted  before  any  justice  of  the  peace  for  the  county,  or 
any  mayor,  recorder,  or  alderman  o,f  the  city  where  the  offence 
shall  be  committed,  upon  the  view  of  the  said  justice,  mayor,  re- 
corder, or  alderman,  or  confession  of  the  party  offending,  or  proof 
of  any  witness,  or  witnesses  upon  oath,  then  the  said  justice,  may- 
or, recorder,  or  aUJerman,  before  whom  such  conviction  shall  be 
had,  shall  direct  and  send  his  warrant,  under  his  hand  and  seal,  to 
some  constable  of  the  city  or  county  where  the  offence  shall  have 
been  committed,  commanding  him  to  seize  and  take  the  goods  so 
exposed  to  sale  as  aforesaid,  and  to  sell  the  same,  and  to  levy  the 
said  other  forfeitures  or  penalties,  by  distress  and  sale  oif  tho 
goods  and  chattels  of  such  offenders,  and  to  pay  the  money  arising 
by  the  sale  of  such  goods  so  seized,  and  the  said  other  forfeitures 
and  penalties,  to  the  overseers  of  the  poor  of  the  city  or  town 
where  the  said  offence  or  offences  shall  have  been  committed,  for 
the  use  of  the  poor  thereof.  And  in  case  no  such  distress  can  be 
had,  then  every  such  offender  shall,  by  a  warrant  under  the  hand 
and  seal  of  the  said  justice,  mayor,  recorder  or  alderman,  be 
committed  to  the  common  gaol  of  the  county,  for  a  space  of  time 
not  exceeding  twelve  hours.  And  further,  that  if  any  person  shall 
be  found  fishing,  sporting,  horse-racing,  hunting,  gunning,  or  going 
to,  or  returning  from,  any  market  or  landing,  with  carts,  wagons, 
or  sleds,  on  the  first  day  of  the  week,  called  Sunday,  it  shall  be 
lawful  for  any  constable,  or  other  citizen,  to  stop  every  person  so 
offending,  and  to  detain  him  or  her  until  the  next  day,  and  then 
to  carry  or  convey  him  or  her  to  some  justice  of  the  peace,  to  be 
dealt  with  according  to  law.  Provided  always,  that  no  person  go- 
ing to,  or  returning  from,  any  church  or  place  of  worship  within 
4he  distance  of  twenty  miles,  or  going  to  call  a  physician,  awrgeon, 

r  23] 


IMMORALITY; 

or  midivil'i*,  or  carrying  a  mail  to  or  from  any  post-office,  or  go- 
ing express  by  order  of  any  public  officer,  or  shall  be  removing 
liis  familjr  or  household  furniture,  if  such  removal  he  not  commen- 
ced on  such  day,  shall  be  considered  as  travelling  within  the 
meaning  of  this  act."  Sess.  .'36.  c.  24.  s.  I.  '2  II.  L.  193. 

"If  any  person  charged  with  having  laboured  or  worked  on  the 
first  day  of  the  week,  called  Sunday,  shall  he  brought  before  a 
justice  of  the  peace  to  answer  to  such  charge,  and  shall  then  and 
there  prove,  to  the  satisfaction  of  the  said  justice,  that  he  or  she 
uniformly  keeps  the  last  day  of  the  week  as  holy  time,  and  does 
not  labour  or  work  on  that  day,  then  such  defendant  shall  be  dis- 
charged. Provided  always,  that  the  work  or  labour  with  which 
he  or  she  in  charged,  has  not  disturbed  other  persons  in  the 
observance  of  the  first  day  of  the  week  as  holy  time."  s.  2. 

;;  No  tavern  keeper,  ale,  or  porter-house  keeper,  inn-keeper,  or 
any  person  selling  strong  or  spirituous  liquors,  ale  or  porter,  with- 
in this  state,  shall  sell  or  dispose  of  any  such  liquors  on  the  first 
day  of  the  week,  commonly  called  Sunday,  to  any  person  whatso- 
ever, lodgers  and  travellers,  tolerated  by  law,  ost-eptcd  ;  and  that 
every  person  offending  in  the  premises,  and  being  thereof  duly 
convicted  before  any  mayor,  recorder,  alderman,  or  justice  of  th& 
peace,  of  the  city  or  town  where  the  same  shall  have  been  com- 
mitted, upon  the  view  of  tho  said  mayor,  recorder,  alderman,  or 
jusiiee  of  the  peace,  or  on  confession  of  the  party  so  offending, 
or  upon  the  oath  of  one  or  more  credible  witnesses,  shall  forfeit 
and  pay,  for  every  such  offence,  the  sum  of  two  dollars  and  fifty 
cents."  s.  3. 

"  If  any  person  or  persons  whatsoever,  either  on  the  first  d?y  of 
tlve  week,  called  Sunday,  or  on  any  other  day  or  time,  shall  wil- 
fully, and  of  purpose,  disquiet,  interrupt,  or  disturb  any  assembly 
of  people  met  for  religious  worship,  by  making  a  noise,  or  by  rude 
and  indecent  behaviour,  or  profane  discourse,  either  within  their 
place  of  worship  or  out  of  it,  so  near  as  to  disturb  the  order  and  so- 
lemnity of  the  meeting,  or  exhibit  any  shows  or  plays,  or  promote 
or  aid  any  horse-racing,  or  gaming  of  any  description,  or  expose 
to  sale  any  ardent  or  diotilkd  liquors  whatever,  or  keep,  or  open 
any  huckster  shop,  upon  any  part  of  any  highway  within  the  dis- 
tance of  one  mile  from  the  place  where  any  such  religious  society 
Miall  be  actually  assembled  for  public  worship,  or  shall  obstruct  the 
free  passage  of  any  highway,  within  the  distance  aforesaid  of  any 
place  of  public  worship,  then  every  person  so  offending,  and  being 
.'hereof  legally  convicted  before  any  justice  of  the  peace  of  the 
county,  or  any  mayor,  recorder  or  alderman  of  any  city  where 
'he  offence  shall  be  committed,  shall,  for  every  such  offence,  forfeit 
arid  pay,  to  the  use  of  the  poor  of  the  town  or  city  where  such 
oft'ence  shall  be  committed,  a  sum  not  exceeding  twenty-five  dol- 
kirs  ;  and  in  case  any  person  convicted  of  any  of  the  offences  afore - 
I,  shall  not  iaia.ediatcly  nay  the  sain  so  forfeited,  with  the 


IMMORALITY.  ]  79 

.:>.*  of  such  conviction,  or  give  security  to  the  satisfaction  of 
iliu  said  justice,  mayor,  recorder  or  alderman,  before  whom  such 
conviction  shall  be  had,  for  the  payment  thereof  within  twenty 
days  thereafter,  every  such  offender  shall,  by  warrant  under  the 
hand  and  seal  of  such  justice,  mayor,  recorder,  or  alderman,  br 
committed  to  the  common  gaol  of  the  said  city  or  county  where 
the  offence  shall  be  committed,  for  a  term  not  exceeding  thirty 
days:  and  all  judges,  mayors,  recorders,  aldermen  and  justices  of  the 
peace,  upon  the  view  of  any  person  or  persons  offending,  are  hero 
by  authorized  to  order  the  said  offender  or  offenders  into  the  cus- 
tody of  any  officer  hereinafter  named,  or  any  official  member  of  the 
church  or  society  so  as  aforesaid  assembled,  for  safe  keeping,  until 
lie  shall  be  let  to  bail,  or  a  trial  for  such  offence  can  be  had  according 
to  law:  And  further,  it  shall  be  the  duty  of  all  sheriffs,  coroners,  mar- 
shals, constables  and  bailiffs,  who  shall  or  may  be  present  at  the 
•  <:;blic  worship  of  any  religious  society  interrupted  ordisturbed  in 
manner  aforesaid,  to  apprehend  any  and  every  such  person  or  per- 
sons so  offending,  and  take,  him  or  them,  as  soon  as  conveniently 
may  be,  before  anyjustice  of  the  peace,  mayor,  recorder,  or  alder- 
man, of  the  city  or  county  wherein  such  offence  shall  have  been 
committed,  in  order  that  the  person  or  persons  so  offending  may 
be  dealt  with  according  to  law."  s.  4. 

"No  person,  upon  the  first  day  of  the  week,  commonly  called 
Sunday,  shall  serve  or  execute,  or  cause  to  be  served  or  executed, 
any  writ,  process,  warrant,  order,  judgment  or  decree,  except  in 
cases  of  treason,  felony,  or  breach  of  the  peace  ;  but  the  service 
thereof  shall  be  void,  and  any  person  so  serving  or  executing  the 
same,  shall  be  liable  for  damages  at  the  suit  of  the  party  griav- 
ed."  '  s.j. 

IV.  Cursing  and  Swearing. 

l:  If  any  person  shall,  at  any  time  hereafter,  profanely  swear  or 
mrse,  and  be  thereof  convicted  by  the  confession  of  the  party  of- 
i'cnding,  or  on  the  oath  of  any  one  or  more  witnesses,  or  in  the 
manner  hereinafter  mentioned,  before  any  justice  of  the  peace. 
for  any  county,  or  any  mayor,  recorder  or  alderman  of  any  city 
in  this  state,  every  person  so  offending  shall,  for  every  such  of- 
fence, forlV.it  and  pay  to  the  use  of  the  city  or  town  where  such 
offence  shall  be  committed,  the  sum  of  thirty-seven  and  a  halt 
cents."  s.  6. 

"  In  case  any  person  shall  profanely  swear  or  curse  in  the  pre- 
sence and  hearing  of  any  justice  of  the  peace  for  any  county,  or 
in  the  presence  and  hearing  of  any  mayor,  recorder  or  alderman 
of  any  city,  while  in  the  execution  of  his  office,  every  such  justice 
of  the  peace,  mayor,  recorder,  or  alderman  shall,  and  he  is  hereby 
authorized  and  required  to,  convict  every  such  offender  of  such 
»>ffence,  without  any  other  proof  whatsoever."  s.  7. 

"  In  case  any  person  who  shall  be  convicted  of  prof-mclr  cm  • 


180  IMMORALITY. 

or  swearing,  shall  not  immediately  pay  the  respective  su)us  so  for- 
feited, with  the  charges  of  such  conviction,  or  give  security  to  the 
satisfaction  of  the  justice,  &c.  hefore  whom  such  conviction  is  had, 
for  the  payment  thereof  within  six  days,  then  every  such  offender, 
being  above  the  age  of  sixteen  years,  shall,  by  warrant  under  the 
hand  aid  seal  of  such  justice,  &c.  be  confined  in  the  gaol  of  the 
county  for  every  oft'cnce,  or  for  any  number  of  offences,  whereof 
any  such  offender  is  convicted  at  one  and  the  same  time,  for  a 
space  of  time  not  less  than  one  day,  or  exceeding  three  days  ;  but 
if  the  offender  shall  not  be  above  the  age  of  sixteen  years,  and 
shall  not  forthwith  pay  the  said  forfeitures,  or  give  security  for 
the  payment  thereof,  the  parent  or  master  shall  pay  the  same,  to 
be  recovered  as  aforesaid,"  i.  e.  by  distress,  s.  8.  See  s.  1 .  supra. 

V.  Prosecution  and  Conviction. 

"  Every  justice  of  the  peace,  mayor,  recorder,  or  alderman, 
shall,  immediately  upon  information  given  upon  the  oath  of  any 
person,  cause  any  offender  against  this  act  to  appear  before  him, 
and  upon  such  information  being  proved  as  aforesaid,"  (i.  c.  by  con- 
fession of  the  party,  or  proof  of  one  or  more  witnesses  on  oath,) 
shall  convict  such  offender,  in  such  manner  as  in  and  by  this  act 
is  prescribed."  s.  9. 

"  Every  justice  of  the  peace,  &tc.  before  whom  any  person  shall 
be,  by  virtue  of  this  act,  convicted  of  any  of  the  offences  aforesaid, 
shall  cause  such  conviction  to  be  drawn  up  in  the  form  following : 

"  City  of  Nciu-York,  (or,  JFestchester  county,  or  other  city  or 
county,  as  the  case  may  require,)  to  icit : 

"  Be  it  remembered,  that  on  the day  of — in  the 

year  of  our  Lord,  one  thousand A.  B.  was  convicted  be- 
fore me,  C.  D.  mayor,  (or  recorder,  or  one  of  the  aldermen  of 
the  said  city,  or  one  of  the  justices  of  the  peace  of  the  said 
county)  of  crying,  or  showing  forth,  or  exposing  to  sale,  one  (or 
two,  or  more,  specifying  the  number,  quantity  and  kind  of  goods) 

on  a  Sunday,  in  the  said  city,  (or,  the  town  of in  the  said 

county)  or  of  travelling,  (or  doing  servile  work  or  labor,  or  of 
shooting,  finking,  sporting,  playing,  horse-racing,  hunting,  or  fre- 
quenting tipling-houscs,  or  using  some  unlawful  exercise  or 
pastime)  on  Sunday,  or  of  swearing  one  (or  two,  or  more)  pro- 
fane oath  or  oaths  (or  of  uttering  one  or  more  profane  curse  or 

curses)  in  the  said  city,  (or  at  the  town  of in  the  said  county, 

as  the  case  may  require)  or  of  obstructing,  on  the  —  day  of 

• the  free  passage  of  the  highway  in  the  city,  (or  town  of 

• )  within  the  distance  of  one  mile  from  a  place  of  public 

worship,  or  of  wilfully  disturbing,  on  the day  of , 

an  assembly  of  people  met  for  religious  worship  in  the  city  or 

town  of ,  by  making  a  noise,  or  by  rude  and  indecent 

behaviour,  or  by  profane  discourse,  or  by  exhibiting  shows  or 
plays,  or  by  promoting  or  aiding  horse-racing  or  gaming,  fa  • 


IMPRISONMENT. 

ifae  case  may  be,)  or  by   exposing  to    sale  ardent  or  distilled 

liquors,  or  of  having,   on  the  day  of  ,   kept    or 

opened  a  huckster's  shop  upon  the  highway,  within  the  distance 
of  one  mile  from  the  place  where  such  religious  society  were 
assembled  for  public  worship,  (as  the  case  may  require.)  Given 
under  my  hand  and  seal,  the  day  and  year  above  said." 

"  And  no  conviction,  or  adjudication  by  virtue  of  this  act,  shall 
be  liable  to  be  removed  by  certiorari  into  the  supreme  court,  but 
shall  be  deemed  and  taken  to  be  final."  s.  JO. 

"  In  all  actions  to  be  brought  by  virtue  of  this  act,  the  like  fees 
shall  be  allowed  and  taken  as  in  cases  of  civil  suits  before  justices 
of  the  peace,  and  no  more ;  and  all  charges  of  the  information 
and  conviction  of  any  such  offenders,  shall  be  paid  by  the  party 
offending,  over  and  above  the  penalties  inflicted  by  this  act ;  which 
charges  shall  be  ascertained  and  settled  by  the  mayor,  recorder, 
alderman,  or  justice,  before  whom  such  conviction  shall  be  had, 
but  shall  in  no  case  exceed  the  sum  of  five  dollars ;  and  all  pen- 
alties which  shall  be  adjudged,  levied  and  collected  by  virtue  of 
this  act,  shall  be  received  by  the  magistrate  before  whom  such 
conviction  and  adjudication  was  had,  and  shall  by  him,  within 
thirty  days  after  the  receipt  thereof,  be  paid  over  for  the  use  of 
the  poor  in  the  city  or  town  where  the  same  was  so  levied  and 
collected ;  Provided  alivays,  That  if  the  offender  shall  be  im- 
prisoned for  the  same  offence,  no  charges  shall  be  paid  by  any 
person  whomsoever,  s.  1 1 . 

"  No  person  shall  be  prosecuted  for  arty  offence  against  this 
act,  unless  the  same  shall  be  prosecuted  within  twenty  days 
next,  after  the  offence  committed."  s.  12. 

lu  any  action  brought  against  a  person  for  executing  this  act, 
the  defendant  may  plead  the  general  issue,  and  give  the  special 
matter  in  evidence  ;  and  in  case  of  verdict  for  the  defendant,  or 
if  the  plaintiff  become  nonsuit,  or  discontinue,  the  defendant 
have  treble  costs,  s.  13. 


IMPRISONMENT. 

Thefolloivingvjfences  are  punishable  with  imprisonment  for  life,  viz.  Sess.36.c.2<. 

9.  3.   1  K.L, 
403. 

Rape. 

The  crime  against  nature,  committed  with  mankind  or  beast. 

Burglary ; 

Feloniously  breaking  into,  or  taking  any  goods  or  chattels  from 
any  dwelling  house,  any  person  being  therein,  and  put  in  fear. 

Robbing  any  dwelling  house,  any  person  being  therein  ;  or  rob- 
bing any  person  in  any  place  whatsoever. 

Offences  specified  in  the  second,  third,  and  fifth  sections  of  the 
act  to  prevent  forgery  and  counterfeiting.  J'idc  FORGERY,  IV. 


18  J  IMPRISONMENT. 

Any  offence,  specified  in  the  act  to  prevent  malicious  maiming-. 
Vide  ASSAULT  anil  BATTT.RY,  VI.  ante,  38. 
And  accessories  before  the  fact  in  any  of  the  said  offences. 

»•••*•  Jf'Uft  imprisonment  for  life,  or  a  shorter  period. 

Forging,  or  counterfeiting  in  certain  cases.   Fide  FOHUKRV,  IV.- 
*,!.  With  imprisonment,  not  exceeding  fourteen  yeais. 

Burning  any  dwelling  house  uninhabited,  or  any  house  of  public 
worship,  or  any  barn,  or  any  grist-mill. 

Offences  specified  in  the  first  section  nf  the  art  lo  prevent 
forgery  and  counterfeiting,  the  punishment  whereof  is  not  pio- 
vided  lor  in  the  fourth  section  of  this  act.  Fide.  FORGERY,  IV. 

Any^felony,  other  fhau  such  as  are  previously  enumerated  in 
this  act,  and  directed  to  be  otherwise  punished,  and  above  the  de- 
gree of  petit  larceny. 

And  accessories  before  the  fact  in  the  above  offences. 

And  persons  a  second  time  convicted  of  ofienoes  within 
section  may  be  sentenced  to  imprisonment  for  life. 

Poisoning,  where  death  does   not  ensue    within  a  year  antl 
i-  "  a  d;iy. 

Jf'ith  imprisonment  not  exceeding  seven  years. 

Offences  specified  in  the  sixth  section  of  the  act,  to  pr<" 
s.  s.  forgery,  Sec.    Vide  FORGERT,  IV. 

Assault  with  felonious  intent,  instead  of  or  in  addition  to  a  fine,  and 
i.  9.  for  a  second  offence,  fourteen  years.    Vide  ASSAULT  and  BATTER ? 

V.  o?z/e,  37. 

Jf  ithfinc  and  imprisonment,  not  exceeding  tJiree  years. 

Petit  Larceny.      Vide  LARCENY,  IV. 

».  to.  Any  felony,  the  punishment  whereof  is  not  before  provided  for 

».  *.  by  this  act. 

Receiving  stolen  goods.     Vide  LAHCE-VY,  V. 
Cheats.      Vide  CHEATS,  II.  ante,  Cf>. 
Accessories  before  the  fact  in  any  of  Ihn  said  offence?, 
And  accessories  after  the  fact  to  any  fciony  whatsoever. 
If  it  shall  he  deemed  proper  by  the  court  before  whom 
JW4.  such  person  shall  be  convicted,  that  instead  of,  or  in  a'! 

fine,  such  person  ought  to  be  imprisoned  for 
case  he  may  be  adjudged  to  imprisonment  in  the  state  prison  for 
the  term  of  three  years. 

Persons  a  second  time  convicted  of  offences  within  this  sectlr-n. 
Ibid.  shall  be  adjudged  to  imprisonment  not  excfrdin;;  HYP  y< 

As  to  the  punishment  of  escapes  from  prison  or  from 

a  gaol,  vide  ESCAPE,  III.  V.  1>S,  93;  1C 


IMPRISONMENT  183 

>f  iik  imprisonment  not  Ktc&ding  ten  years.  ».  20. 

Perjury  and  subornation  of  perjury. 

"  In  all  cases  where  the  punishment,  or  any  part  thereof,  by  this  ».  ri. 
ur.t  ordained  for  petit  larceny,   shall  be  imprisonment,  the  court 
before  whom  the  offender  shall  be  convicted,  may  order  and  direct 
fhat  the  offender  be  fed  on  such  diet  as  the   said  court  may 
think  most  likely  to  conduce  to  the  reformation  of  such  offender." 

"  Every  person  who  shall  hereafter  be  duly  convicted  of  any  *•&• 
offence,  for  which  the  offender  is  liable  to  imprisonment  in  the 
gaol  of  the  county,  in  every  such  case,  the  court  before  whom  the 
conviction  is  had  may  sentence  the  person  convicted  to  imprison- 
ment in  one  of  the  solitary  cells  of  the  county,  if  any  such  be 
erected." 

"  No  person  sentenced  to  imprisonment  for  any  term  of  time  *• 14- 
lass  than  three  years,  shall  be  liable  to  be  imprisoned  in  the  state 
imprisoBment,  but  shall  be  confined  in  the   gaol    of  the  city  or 
county  in  which  such  person  may  be  sentenced." 

"  In  all  cases  where  any  person  shall  be  duly  convicted  or  »•  :- 
attainted  of  any  felony,  committed  after  tho  twenty-ninth  diiy  of 
March,  1799,  or  of  aiding;,  abetting,  hiring,  or  commanding  any 
person  to  commit  any  such  felony,  and  shall  be  adjudged  to  im- 
prisonment for  life  in  the  state  prison,  such  person  shaJl  be 
deemed  and  taken  to  be  civilly  dead  to  all  intents  and  purposes 
in  the  law." 

Where  the  defendant  in  a  cause  is  sentenced  to  the  state  prison   Graham,  \. 
for  life,  he  is  considered  as  civilly  dead,  and  the  suit  is  abated.       3  juLni.  ca«, 

A  person  sentenced  t»  the  state  prison  for  life,  was  pardoned,  3- 
and  on  motion  for  a  habeas  corpus  to  bring  up  his  children,  who 
were  in  the  custody  of  their  mother,  and  her  second  husband  as 
guardians,  the  question  was,  whether  the  father,  by  the  pardon,  wn* 
restored  to  his  parental  rights,  and  entitled  to  the  custody  of  his 
children.  The  court  said,  that  the  effect  of  the  pardon  was  \n 
acquit  the  offender  of  all  the  penalties  annexed  to  the  conviction, 
and  to  give  him  a  new  credit  and  capacity.  The  limitation  t<* 
the  operation  of  a  pardon  on  his  antecedent  rights  is,  that  it 
not  devest  any  person  of  any  right  or  interest  which  the  law  had 
permitted  to  b6  acquired  and  vested  in  consequence  of  the  judg- 
ment. It  consequently  cannot  annul  or  affect  the  validity  of  tli? 
'1  marriage  of  the  wife,  nor  the  sale  of  any  of  the  property 
of  the  convict  by  the  persons  who  had  in  the  mean  time  been 
appointed  to  administer  upon  his  •state,  nor  his  heirs  of  t!i« 
vested  interest  acquired  in  his  estate,  in  consequence  of  his  civil 
death.  But  the  pardon  restores  him  to  the  relation  of  fatlu-r. 
"and  there  cannot  have  occurred  aay  intervening  right  to  defeat 


184  INDICTMENT. 

trustee,  without  any  rested  interest,  and  he  cannot  be  affected  in 
interest  by  the  cessation  of  the  trust. 

The  children,  on  being  afterwards  brought  up  on  the  return  of 
u>  John?.        the  habeas  corpus,  were  ordered  to  be  delivered  to  their  fattier. 

«ep.  4»3. 


INDICTMENT. 

I.  Indictment,  what  is,  and  by  whom,  and  low  to  be  found 
II.  Mrhat  offences  are  indictable,  and  when. 

III.  Form  of  the  indictment. 

IV.  Pleas  to  the  indictment. 
V.  Arraignment  and  trial. 

VI.  Judgment. 

I.  Indictment,  ichal  is,  and  by  whom,  and  how  to  be  found, 

An  indictment  is  a  written  accusation  of  one  or  more  person^ 
4  Black.         of  a  crime  or  misdemeanour,  preferred  to,  and  presented  upon 
s  Burn*'         oath  by,  a  grand  jury.    When  such  accusation  is  found  by  a  grand 
Ju$t.  747.       jury  without  any  bill  brought  before  them,  and  afterwards  reduced 
u.  c.  **!  ».'i.    to  a  form  of  indictment,  it  is  called  a  presentment ;  and  when  it  it- 
found  by  jurors,  returned  to  inquire  of  that  particular  offence  only 
which    is  indicted,    it   is    properly   called  an  inquisition.     The 
sheriff  of  every  county  is  bound  to  return  to   every  general  ses- 
sions of  the  peace,  and  every  court  of  oyer  and  ternainer,  and 
general   gaol  delivery,  twenty-four  good  and  lawful  men  of  the 
county,  who  are  to  inquire  of  the  truth  of  the  indictments  which 
shall  then  be  referred  to  them.     As  many  as  appear  upon  this 
panel,  are  sworn  upon  the  grand  jury,  to  the  amount  of  twelve  at 
the  least,  and  not  more  than  twenty-three  ;  that  twelve  may  be  a 
majority. 

This  grand  jury  are  previously  instructed  in  the  articles  of  their 
4  Black.  inquiry,  by  a  charge  from  the  judge,  who  presides  upon  the  bench. 
They  then  withdraw,  to  sit  and  receive  indictments,  which  are 
preferred  to  them  in  the  name  of  the  people,  but  at  the  suit  of 
any  private  prosecutor ;  and  they  are  only  to  hear  evidence  ori 
the  part  of  the  prosecution :  for  the  finding  of  an  indictment  is 
only  in  the  nature  of  an  inquiry,  or  accusation,  which  is  afterwards 
to  be  tried  and  determined ;  and  the  grand  jury  are  only  to  in- 
quire upon  their  oaths  whether  there  be  sufficient  cause  to  call 
upon  the  party  to  answer  it.  A  grand  jury,  however,  ought  to  be 
thoroughly  persuaded  of  the  truth  of  an  indictment,  so  far  as  their 
evidence  goes;  and  not  to  rest  satisfied  with  remote  probabilities; 
a  doctrine  that  might  be  applied  to  very  oppressive  purposes. 

Every  foreman  of  a  grand  jury  is  authorized,  from  the  time  of 
his  being  appointed  until  his  discharge,  to  administer  the  usual 
oath  or  affirmation  to  such  witnesses  as  shall  come  to  give  evi- 


INDICTMENT.  185 

dence  to  the  grand  jury,  whereof  he  is  foreman.     Sess.  36.  c.  56. 
3.  27.  1  K.  L.  525. 

The  grand  jury  are  sworn  to  inquire  only  foj-  the  body  of  the 
county,  and  therefore  they  cannot  regularly  inquire  of  a  fact  done 
out  of  that  county  for  which  they  are  sworn,  unless  particularly 
enabled  by  the   legislature.     As  where  a  party  stricken  or  poi-  Seu.ss.c^s. 
soned  in  one  county,  dies  in  another,  the  offender  could  not,  at  49^ 
common  law,  ha\e  been  indicted  in  either;  but  it  is  now  provided 
by  statute,  that  he  may  be  indicted  in  the  county  where  the  death 
takes  place.     So,  treasons  committed   out  of  the  state  may  be  sets. 24.  c. 29. 
tried  in  the  county  in  which  the  supreme  court  shall  sit.  iVe*' Se^Vur- 

If  larceny  be  committed  in  one  county,  and  the  goods  carried  th*r  Accent- 
into  another,    the    offender  may   be   indicted  in  either  ;  for  the  Vijiac'k. 
offence  is  complete  in  both.     But  for  robbery,  burglary,  and  the  Com.sos. 
like,  he  could  at  common  law  only  be  indicted  where  the  fact  was 
actually  committed  :   for  though  the   carrying  away  and  keeping 
of  the  goods  is  a  continuation  of  the  original  taking,  yet  it  is  not 
a  robbery,  or  burglary,  in  that  jurisdiction. 

However,  it  has  been  enacted,  that  "  if  any  person  shall  be 
indicted  of  felony,  for  stealing  of  any  goods  or  chattels,  in  any 
county  of  this  state,  and  thereof  be  convicted  or  attainted,  if  it 
shall  appear  upon  evidence,  and  be  found  by  the  jury,  that  the 
ftaid  goods  or  chattels  were  taken  by  robbery,  or  burglary,  or  in 
any  other  manner,  in  any  other  county,  whereof  if  a  person  had 
been  convicted  by  a  jury  of  such  other  county,  such  person  would, 
by  law,  be  liable  to  imprisonment  in  the  state  prison  for  life,  at 
hard  labour,  or  in  solitude,  or  both,  then,  and  in  every  such  case, 
judgment  shall  be  given  that  the  said  offender  be  imprisoned  in 
the  said  prison  for  life,  at  hard  labour,  or  in  solitude,  or  both." 
Sess.  36.  c.  29.  s.  2.  1  R.  L.  408. 

The  prosecutor  is  a  good  witness  to  prove  the  indictment,  and  2  Hawk. c. 
except  in  treason,   which  requires  two  witnesses,  an  indictment  ^BunisMust. 
may  be  found  on  the  oath  of  one  only.  747-  752- 

It  seems  to  be  generally  agreed,  that  a  grand  jury  may  not  find  2  Hawk.  p.c. 
any  part  of  an  indictment  to  be  true,   and  part  false;   but  must  c>2*'  i-2< 
either  find  a  true  bill,  or  ignoramus  for  the  whole,  and  if  they  take 
upon  them  to  find  it  specially,  or  conditionally,  or  to  be  true  for 
part  only,  and  not  for  the  rest,  the  whole  is  void,  and  the  party 
cannot  be  tried  upon  it,  but  ought  to  be  indicted  anew. 

But  the  above  doctrine  relates  only, to  cases  where  the  grand  cowper, 325, 
jury  take  upon  them  to  find  part  of  the  same  indictment  to  be  true 
and  part  false  ;  but  where  there  are  two  distinct  counts,  the  find- 
ing billa  vcra  as  to  one  count  only,  and  rejecting  the  other,  leaves 
the  indictment  as  to  the  one  count,  which  the  jury  affirm,  just  as 
if  there  originally  had  been  only  that  one  count. 

When  the  grand  jury  have  heard  the  evidence,  if  they  think  it  4BlacJ£- 
a  groundless  accusation,  they  indorse  on  the  bill,  "  not  a  true  bill ;"  30^'  "* 
or  (which  is  the  better  way)  "  not  found  ;"  and  then  the  party  is 
discharged  without  farther  answer.      But  a  fresh  bill  may  af- 

[  2*] 


i#5  INDICTMENT. 

ten-wards  be  preferred  to  a  subsequent  grand  jury.  If  they  are 
satisfied  of  the  truth  of  the  accusation,  they  then  indorse  upon  it, 
"a  true  bill."  The  indictment  is  then  said  to  he  found,  and  the 
party  stands  indicted.  But  to  find  a  bill,  at  least  twelve  of  the 
grand  jury  must  assent  to  it,  and  it  will  then  be  a  good  present- 
ment, though  some  of  the  rest  disagree.  And  the  indictment, 
when  so  found,  is  publicly  delivered  into  court. 

II.   What  offences  are  indictable,  and  when. 

•2  Hawk.  All  capital  crimes  whatsoever,  and  all  kinds  of  inferior  crimes  of 

a  public  nature,  as  misprisions,  and  all  other  contempts,  all  distur- 
bances of  the  peace,  ail  oppressions,  and  all  other  misdemeanours 
whatsoever  of  a  publicly  evil  example  against  the  common  law, 
may  be  indicted  ;  but  no  injuries  of  a  private  nature.  Also, 
Wherever  a  statute  prohibits  a  matter  of  public  grievance,  or  com- 
mands a  matter  of  public  convenience,  as  the  repairing  of  the 
common  streets  of  a  town,  an  offender  against  such  statute  is  pun- 
ishable, not  only  at  the  suit  of  the  party  aggrieved,  but  also  by 
way  of  indictment  for  his  contempt  of  the  statute,  unless  such 
method  of  proceeding  manifestly  appear  to  be  excluded  by  it. 
And  where  a  statute  adds  a  further  penalty  to  an  offence  forbid- 
den t>y  the  common  law,  there  can  be  no  doubt  but  that  the  offender 
may  still  be  indicted  at  common  law. 

The  statute  of  limitations  provides,  "That  all  suits,  informations, 
and  indictments,  which  shall  hereafter  be  brought  or  exhibited 
for  any  crime  or  misdemeanour,  murder  excepted,  shall  be  brought 
or  exhibited  within  three  years  next  after  the  offence  shall  have 
been  committed,  and  not  after  ;  and  if  brought  or  exhibited  after 
the  time  hereby  limited,  the  same  shall  be  void.  Provided,  hme- 
cver,  That  if  the  person  against  whom  such  suit,  information,  or 
indictment,  shall  be  brought  or  exhibited,  shall  not  have  been  an 
inhabitant,  or  usually  resident  within  this  state,  during  the  said 
three  years,  then  the  same  shall  or  may  be  brought,  or  exhibited 
against  such  person  at  any  time  within  three  years,  during  which 
He  shall  be  an  inhabitant  or  usually  resident  within  this  state,  after 
the  offence  committed."  And  it  is  further  provided,  that  where 
a  lesser  time  is  limited  by  any  statute,  the  suit,  information,  or 
indictment,  must  be  brought  within  the  time  so  limited.  Sess.  24, 
c.  183.  s.  7.  I  R.  L.  187. 

III.  Form  of  the  indictment. 

2  Hale,  P.  c.       '^le  captf°n  o£  the  indictment  is  no  part  of  the  indictment  it- 
i66.  Self,  but  is  the  style,  or  preamble,  or  return,  that  is  made  from 

7i3.  '  an  inferior  court  to  a  superior,  from  whence  a  certiorari  issues  to 

remove,  or  when  the  whole  record  is  made  up  in  form  ;  for  where- 
as the  record  of  the  indictment  as  it  stands  upon  the  file  in 
the  court  where  it  is  taken,  is  only  thus  :  The  jurors  for  the  peo- 
ple of  the  piate  of  New-  York,  (fc.  upon  their  oaths  present ;  when 


INDICTMENT.  ]  87 

this  com'cs  to  be  returned  upon  a  certiorari,  it  is  more  full  and  ex- 
plicit ;  as,  "  At  a  court  of  general  sessions  of  the  peace,  holden 

at ,  in  and  for  the  county  of ,  the  • day  of 

,  before ,  esquires,  and  others  their  associates,  jus- 
tices assigned  to  keep  the  peace  in  the  said  county,  and  also  to 
hear  and  determine  divers  trespasses,  felonies  and  other  misde- 
meanours in  the  said  county  committed,  by  the  oath  of , 

good  and  lawful  men  of  the  county  aforesaid,  sworn  and  charged 
to  inquire  for  the  said  people  of  the  state  of  New-York,  and  for 
the  body  of  the  county  aforesaid,  it  is  presented,  That,  &c." 

The  name  of  the  county  must  be  in  the  margin,  or  repeated  in  2ii»ie,  p.  t 
the  body  of  the  caption  ;  and  it  must  name  all  the  jurors  who  pre- 
sented the  offence. 

The  name  of  the  party  indicted  ought  to  be  inserted,  and  in-  p^,*c^;f 
serted  truly  ;  and  addition  should  be  made  of  his  estate,  degree,  or 
mystery,  and  of  the  town  and  county  of  which  he  is,  or  was  con- 
versant :  and  if  such  addition  be  omitted,  any  outlawry  pronounced 
on  the  indictment  will  be  void,  and  before  the  outlawry  is  pro- 
nounced, the  indictment  shall  be  abated  by  the  exception  of  th$ 
party.  Sess.  24.  c.  51.  s.  3.  1  R.  L.  165. 

If  there  be  several  offenders  that   commit  the  same  offence,  *  J^i1''  e~ 
though  in  law  they  are  several  offences  in  relation  to  the  several  935.  astr.' 
offenders,  yet  they  may  be  joined  in  one  indictment ;  as  if  several  j^w"™:' 
commit  a  robbery,  or  burglary,  or  murder.     And  so  it  is  though  8Et«,4i. 
the  offences  are  of  several  degrees,  but  dependent  one  upon  an- 
other, as  the  principal  in  the  first  degree,  and  the  principal  in  the 
second  degree,  to  wit,  present,  aiding  and  abetting  the  principal, 
and  accessory  before  or  after.     Also  several  persons  may  be  in*' 
dieted  in  the  same  indictment  for  several  offences  of  the  same  nff- 
ture,  as  for  keeping  disorderly  houses  ;  but  the  indictment  ought 
to  set  forth,  that  they  severally  did  so.     And  this  is  only  to  be  un- 
derstood, where  the  offences  may  be  joint,  as  in  extortion,  main- 
tenance, receiving  stolen  goods,  and  the  like,  and  not  where  the. 
offence  is  a  separate  act  in  each  ;  as  in  an   indictment  for  per- 
jury, which  is  in  its  nature  several,  and  two  cannot  be  indicted 
together. 

But  in  practice  it  is  otherwise  ;  and  in  mercy  to  the  prisoner,  a  Barm' Jus <. 
that  he  may  not  be  confused  in  his  defence,  or  the  jury  prejudiced  751' 
and  bewildered  by  the  consideration  of  various  crimes,  depend- 
ing on  various  circumstances,  at  the  same  time. 

It  is  no  objection  in  arrest  of  judgment,  that  the  indictment  3  Term 
contains  several   charges  of  the   same  nature,  (as  several   mis-  ^Burn*°jmt 
demeanours,)  in  the  different  counts  ;  for  the  judgment  is  the  same.  "so. 
It  would  be  otherwise,  indeed,  if  the  legal  judgment  on  each 
count  were  different,  for  that  would  be  like  a  misjoinder  in  civil 
actions.     But  for  the  reasons  just  mentioned,  separate  bills  are 
generally  preferred  against  the  prisoner  for  offences  committed 
at  different  times. 

Every  indictment  must  contain  a  complete  description  of  such  5B»t,:«4. 
facts  and  circumstances  as  constitute  the  crime,  without  incon- 


1 88  INDICTMENT. 

sistency  or  repugnancy.  But  except  in  certain  cases,  where 
technical  expressions,  having  grown  by  long  use  into  law,  are  re- 
quired to  he  used,  the  same  sense  is  to  be  put  on  the  words  of  an 
indictment  which  they  bear  in  ordinary  acceptation.  And  if  the 
sense  of  any  word  be  in  ordinary  acceptation  ambiguous,  it  shall 
be  construed  according  as  the  context  and  subject  matter  require 
it  to  be,  in  order  to  make  th«  whole  consistent,  and  sensible. 
4  Black.  The  time  and  place  are  necessary  to  be  ascertained,  by  naming 

2 Hawk!  P. c.  the  day  and  township  in  which  the  fact  was  committed.  Though 
c.  4,  e.  i.  32.  a  mistake  in  these  points  is  generally  not  held  to  be  material,  and 
the  defendant  maybe  convicted  upon  proof  of  the  fact  at  any  other 
time,  whether  after  or  before  the  day  laid,  provided  it  be  laid  to 
have  beten  committed  previous  to  the  finding  of  the  indictment. 
And  as  to  place,  where  it  forms  part  of  the  description  of  the 
fact  charged  against  the  defendant,  there  the  least  variance  be- 
tween the  evidence  and  indictment  is  fatal :  but  where  the  place 
is  laid  only  for  a  venue,  proof  of  the  crime  at  any  other  place  in 
the  same  county  maintains  the  indictment.  Where  there  is  any 
limitation  in  point  of  time  assigned  for  the  prosecution  of  offend- 
ers, the  time  should  be  laid  in  such  a  manner,  that  the  prosecution 
may  appear,  on  the  face  of  the  proceedings,  to  have  been  com- 
menced within  the  requisite  period  after  the  coumiiosion  of  tha 
offence  ;  and  in  case  of  murder,  the  time  of  the  death  must  be 
laid  within  a  year  and  a  day  after  the  mortal  stroke  was  given. 
jRuroj'jujt.  If  the  county  is  in  the  margin,  and  the  indictment  sets  forth  the. 
7i<s>  offence  to  be  done  at  such  a  place,  in  the  county  aforesaid,  it  is 

good,  for  it  refers  to  the  county  in  the  margin  ;  but  if  there  be 
two  counties  named,  one  in  the  margin,  and  another  in  the  addi- 
tion of  any  party,  or  in  the  recital  of  a  statute,  the  fact  laid  at 
such  a  place  in  the  county  aforesaid,  vitiates  the  indictment,  be 
cause  two  counties  are  named  before,  and  therefore  it  is  uncer- 
tain to  which  it  refers. 

4  Black-.  The   offence  itself  must  be  set  forth  with  clearno?«  anti  cer- 

so°7™'  '  tainty,  and  nothing  material  shall  be  taken  by  intendment  or  im- 
plication :  and  in  some  crimes,  particular  words  of  art  must  be 
used,  which  are  so  appropriated  by  the  law  to  express  the  precise 
idea  which  it  entertains  of  the  offence,  that  no  other  words,  how- 
ever synonimous  they  may  seem,  are  capable  of  doing  it.  Thus, 
in  treason,  the  facts  must  be  laid  to  be  done,  "  treasonably  and 
against  his  allegiance,"  else  the  indictment  is  void.  In  indict- 
ments for  murder,  it  is  necessary  to  say  that  the  party  indicted, 
"  murdered,"  not  "  killed,"  or  "  slew,"  the  oth»-r.  In  all  indict- 
ments for  felonies,  the  adverb  "  feloniously,"  must  be  used  ;  and 
for  burglaries  also,  "  burglariously  ;"  and  all  these  to  ascertain 
the  intent.  In  rapes,  the  word  "  ravished"  is  necessary,  and  must 
not  be  expressed  by  any  periphrasis, in  order  to  render  the  crime 
certain.  So,  in  larcenies  also,  the  words  "  feloniously  took  arid 
carried  away,"  are  necessary  to  every  indictment,  for  these  only 
can  express  the  very  offence.  Al:-o  in  indictments  for  murder, 
the  length  and  depth  of  the  wound  should  be  generally  c.xpres:-r<J. 


INDICTMENT.  189 

in  order  that  it  may  appear  to  the  court  to  have  been  of  a  mortal 
nature  :  but  if  it  goes  through  the  body,  then  its  dimensions  are 
immaterial,  for  that  is  apparently  sufficient  to  have  been  the 
cause  of  the  death.  Also,  where  a  limb,  or  the  like,  is  abso- 
lutely cut  off,  there  such  description  is  impossible. 

There  is  no  necessity  in  an  indictment  on  a  public  statute,  to   p*{?wk',,. 
recite  such  statute,  for  the  judges  are  bound,  ex  ojfficio,  to  take  no-   103,104,  105, 
tice  of  all  public  statutes.     Yet,  if  the  prosecutor  take  upon  him    i°&nind.  135, 
to  recite'  it,  and  materially  vary  from  a  substantial  part  of  the  pur-   »•  3. 
view  of  tiie  statute,  and  conclude  against  the  form  of  the  statute 
aforesaid,  he  vitiates  the  indictment.     And  it  hath  been  adjudged, 
that  a  misrecital  of  the  title  of  a  statute  is  fat.il. 

An  indictment  grounded   upon  an  offence  made  by  statute,   9  Hale,  r.  c. 
must,  by  express  words,  bring  the  offence  within  the  substantial   }7^|und-  13;; 
description   made  in   the  staiute  ;  and  those  circumstances  men-  »-3. 
tioned  to  make  up  the  offence,  shall  not  be  supplied  by  the  gene- 
ral conclusion,  against  the  form  of  the  statute. 

Where  an  evil  intent  accompanying  an  act  is  necessary  to  con-  6E»§t,464. 
stitute  such  act  a  crime,  the  intent  must  be  alleged  in  the  indict- 
ment, and  proved  :  though  it  is  sufficient  to  allege  it  in  the  pre- 
fatory part  of  the  indictment.  But  where  the  act  is  in  itself  un- 
lawful, the  law  infers  an  evil  intent,  and  the  allegation  of  such  in- 
tent is  merely  matter  of  form,  and  need  not  be  proved  by  extrinsic 
evidence  on  the  part  of  the  prosecutor. 

In  indictments,  the  value  of  the  thing,  which  is  the  subject  or  4  BUA. 
instrument  of  the  offence,  must  sometimes  be  expressed.     In  in-   Co™-307- 
dictments  for  larcenies  this  is  necessary,  that  it  may  appear  whe- 
ther it  be  grand  or  petit  larceny  :  and  in  homicide  of  all  sorts,  it 
•was  necessary  at  common  law,  and  is  still  always  done,  notwith- 
standing the  custom  of  deodand,  the  only  reason  for  it,  has  been 
abolished.      Sess.  36.  c.  8.  s.  3.  1  R    L..  495. 

The  words,  with  force  and  arms,  or  any  such  words,  are  not 
necessary  to  an  indictment,  and  the  party  cannot  except  to  the 
omission  of  them.  Ibid.  s.  13. 

An  indictment  without  concluding  against  the  peace  is  insuffi-   2  Hal*-,  P.  c. 
cient;  and  if  the  offence   were  created  by  statute,  it  should  also   188- 162- 
conclude  against  the  form  of  the  statute  :  so,  too,  where  a  statute 
alters  an  offence  from  one  cri?Tie  fo  another,  as  making  a  bare  mis- 
demeanour to  become  a  felony,  it  must  conclude  against  the  form 
of  the  statute,  or  otherwise  it  is  insufficient. 

Hut  if  an  indictment  for  an  offence  purely  at  common  law,  con-    i  Sarind.  13$. 
elude  against  the  form  of  the  statute,  it  is  good,  notwithstanding,   n'3' 
if  it  also  conclude  against  the  peace,  and  the  words,  against  the 
form  of  the  statute,  shall  be  rejected  as  surplusage. 

No  criminal   prosecution   is  within   the  benefit  of  any  of  the    2  Hawk, 
statutes  of  amendments;  from  whence]!  follows,  that  no  amend-    j''^e'  2S" 
ment  cnn  be  admitted,  in  any  such  prosecution,  but  such  only  as 
is  allowed  by  the  common  law. 

Regularly,  at  common  law,  neither  false  Latin,  the  omission  of  j  Bat.  Alir. 
i  word,  syllable  or  letter,   or  other  defect  or  variance  from  the    "*• 


190  INDICTMENT. 

approved  and  legal  forms  were  amendable  ;  excepting  that  all 
mistakes  are  by  common  law  amendable  the  same  term,  because 
it  is  a  roll  of  that  term,  and  so  in  the  breast  of  the  court  during  the 
whole  term,  and  then  a  new  roll  might  be  brought  in,  in  the  cause, 
and  consequently  the  same  roll  may  be  amended. 

i  Bae.  Abr.  But  it  has  been  adjudged,  that  the  proviso  in  the  statute  of 
amendments  and  jeofails,  which  excepts  appeals  and  indictments 
for  felony,  &c.  and  that  they  shall  not  extend  to  any  writ,  bill, 
action  or  information  upon  any  popular  or  penal  statute,  does 
not  extend  to  those  cases  in  which  a  remedy  is  given  by  way  of 
recompense  to  a  party,  as  upon  the  statute  of  waste,  forcible 
entry,  &c. 

IV.  Pleas  to  the  Indictment. 

333!'  C°m'  The  defendant  may  on  his  arraignment  plead,  1.  To  the  juris- 
diction of  the  court  in  which  he  is  arraigned  ;  or,  2.  Demur  ;  or 
plead  either,  3.  In  abatement,  4.  In  bar,  or,  5.  The  general  issue. 

4Bl.  Corn.  I.  A  plea  to  the  jurisdiction,  is  where  an  indictment  is  taken 

before  a  court  that  hath  no  cognisance  of  the  oflence;  as  if  a 
man  be  indicted  for  treason,  or  murder,  at  the  sessions  of  the 
peace,  and  be  brought  up  there  to  take  his  trial :  in  this  or  similar 
cases,  he  may  except  to  the  jurisdiction  of  the  court,  without  an- 
swering at  all  to  the  crime  alleged. 

33?  334™*  *'•  ^  demurrer  is  incident  to  criminal  cases,  as  well  as  civil, 

when  the  fact  ai;  alleged  is  allowed  to  be  true,  but  the  prisoner 
joins  issue  upon  some  point  of  law  in  the  indictment,  by  which 
he  insists  that  the  fact,  as  stated,  is  no  felony,  treason,  or  what- 
ever the  crime  is  alleged  to  be.  But  as  there  has  been  a  doubt 
whether,  if  the  demurrer  should  be  found  against  the  prisoner, 
judgment  should  not  pass  against  him,  as  if  he  had  been  convicted 
by  verdict,  which  opinion  however  has  been  denied  by  others, 
demurrers  to  indictments  are  seldom  used  ;  since  the  same  ad- 
vantages may  be  taken  upon  a  plea  of  not  guilty;  or  afterwards 
in  arrest  of  judgment,  when  the  verdict  has  established  the  fact. 

3  B1'3^om"  ^'  ^  I^ea  m  abatement  is  principally  for  a  misnomer,  a  wrong 

name,  or  a  false  addition  to  the  prisoner.  As,  if  James  Allen  is 
indicted  by  the  name  of  John  Allen,  he  may  plead  that  his  name 
is  James,  and  not  John.  And  if  it  be  so  found  by  the  jury,  the 
indictment  shall  be  abated.  But,  in  the  end,  there  is  little  advan- 
tage accruing  to  the  prisoner  by  means  of  these  dilatory  pleas  ; 
because,  if  the  exception  be  allowed,  a  new  bill  of  indictment  may 
be  framed,  according  to  what  the  prisoner  in  his  plea  avers  to 
be  his  true  name  and  addition.  For  it  is  a  rule,  upon  all  pleas  in 
abatement,  that  he  who  takes  advantage  of  a  flaw  must  at  the 
same  time  rhow  how  it  may  be  amended. 

i70lale'P'  C<  Although  thedefendant.be  indicted  by  a  wrong  name  in  addition, 
or  with  no  addition,  yet  if  he  appear,  and  plead  not  guilty,  without 
taking  advantage  of  that  defect,  he  shall  never  allege  the  misno- 


INDICTMENT. 

uier  or  want  of  addition  to  stop  his  trial  or  judgment,  for  by  such 
his  appearance  and  pleading  to  issue,  the  indictment  is  affirmed, 
and  the  misnomer  or  want  of  addition  solved. 

In  cases  of  felonjr,  the  defendant  is  allowed  to  plead  in  chief  sEast,  we.  __ 
after  a  plea  in  abatement ;  but  on  an  indictment  for  a  misde-  l"^^'?? 
meanour,  if  a  plea  in  an  abatement  be  found  against  the  defend- 
ant, he  cannot  plead  over,  but  final  judgment  will  be  given  against 
him. 

IV".  Special  pleas  in  bar  ;  which  go  to  the  merits  of  the  in-   4Bl.Com. 
dictment,  and  give  a  reason  why  the   prisoner  ought  not  to  an-   33S° 
swcr  it  at  atl,  nor  put  himself  upon  his  trial  for  the  crime  alleged. 
These  are  of  four  kinds :  a  former  acquittal,  a  former  conviction, 
a  former  attainder,  or  a  pardon. 

FIRST,  the  plea  of  anterfoits  acquit,  or  a  former  acquittal,  is  33^'°Coin* 
grounded  on  this  universal  maxim  of  the  common  law,  that  no 
man  is  to  be  brought  into  jeopardy  of  his  life  more  than  once  for 
the  same  offence.  And  hence  it  is  allowed  as  a  consequence, 
that  when  a  man  is  once  fairly  found  not  guilty  upon  any  indict- 
ment or  other  prosecution,  before  any  court  having  competent 
jurisdiction  of  the  offence,  he  may  plead  such  acquittal  in  bar  of 
any  subsequent  accusation  for  the  same  crime. 

But  when   the   first  indictment  is  so  far  erroneous  (either  for  3H«wk.c.35. 
want  of  substance  in  setting  out  the  crime,  or  of  authority  in  the   c'we,4Co.44. 
judge  before  whom  it  was  taken)  that  no  good  judgment  could 
have  been  given  against  the  defendant,  he  may  be  indicted  a 
second  time  for  the  same  offence  after  a  previous  acquittal. 

So,  where  a  person  tried  and  convicted  on  an  indictment,  and    People 
afterwards  discharged,    because   a  juror  had  been  improperly   rJo 
withdrawn,  was  again  tried  on  a  second  indictment  for  the  same   66> 
offence,  and  pleaded  anterfoits  acquit  in  bar,  it  was  held,  that  as 
the  first  indictment  was  erroneous,  the  plea  of  a  former  acquittal 
was  no  bar  to  the  second. 

SECONDLY,  the  plea  of  anterfoits  convict,  or  a  former  conviction  «Bi.c«a. 
for  the  same  identical  crime,  though  no  judgment  was  ever  given,  2Hawk.c."fc. 
or  perhaps  ever  will  be,  is  a  good  plea  in  bar  to  an  indictment.  •• Wt 
And  this  depends  upon  the  same  principle  as  the  former,  that  no 
man  ought  to  be  twice  brought  in  danger  of  his  life  for  one  and 
the  same  crime.     Hereupon  it  has  been  held,  that  a  conviction  of 
manslaughter  is  a  bar,  in  an  indictment  of  murder  ;  for  the  fact 
prosecuted  is  the  same  in  both,  though  the  offences  differ  in  co- 
louring and  in  degree.     It  is  to  be  observed,  that  the   pleas  of  a 
former  acquittal  and  former  conviction,  must  be  upon  a  prosecu- 
tion for  the  same  identical  act  and  crime.     But  the  case  is  other- 
wise in, 

THIRDLY,  the  plea  of  anterfoits  attaint,  or  a  former  attainder;  481. Com. 
which  is  a  good  plea  in  bar,  whether  it  be  for  the  same  or  any  2HawiJc,"t 
other  felony.     For  wherever  a  man  is  attainted  of  felony,  by  *•  !>*•*• 
judgment    upon   verdict,  or  confession,  or  by  outlawry,  he  may 
plead  such  attainder  in  J>ar  to  any  subsequent  indictment  for  ih<*. 


4  El.  C vni. 


192  INDICTMENT. 

same  or  any  otiier  ftlor.y.  And  this  because,  generally,  such 
proceeding  on  a  second  prosecution  cannot  be  to  any  pu; 
for  the  prisoner  is  dead  in  law  by  the  first  attainder.  But  to 
this  rule  there  are  some  exceptions  :  as,  where  the  former  at- 
tainder is  reversed  for  error,  for  then  it  is  the  same  as  if  it  had 
never  been  ;  or  where,  after  being  attainted  of  one  felony,  he  is 
indicted  as  principal  in  another,  in  which  there  are  accessories  : 
because  the  accessories  to  such  second  felony  cannot  be  convicted 
till  after  the  conviction  of  the  principal. 

LASTLY,  a  pardon  may  be  pleaded  in  bar,  as  at  once  destroy- 
ing the  end  and  purpose  of  the  indictment,  by  remitting  that 
punishment  which  the  prosecution  is  calculated  to  inflict. 

It  is  to  be  observed,  that  whenever  the  defendant  pleads  matter 
which  does  not  go  to  the  denial  of  the  charge  alleged  against 
him,  but  only  in  avoidance  of  it,  as  is  the  case  in  the  pleas  just 
enumerated,  it  is  necessary  that  the  opposite  party  should  reply 
and  deny  the  fact  there  stated,  in  order  that  there  may  be  an 
issue,  that  is,  a  direct  affirmation  by  one  party,  and  a  denial  by  the 
other  party,  of  some  material  circumstance  constituting  the  gist 
of  the  charge  ;  thus,  if  the  defendant  plead  a  former  acquittal,  or 
a  pardon,  such  pleas  do  not  deny  or  put  in  issue  the  allegations 
of  the  indictment,  but  do  themselves  present  some  new  fact,  the 
truth  of  which  must  be  inquired  into,  and  for  that  purpose  an 
issue  be  taken  :  the  new  fact  here  presented  by  the  defendant,  is 
the  existence  of  a  certain  record,  the  proceedings  of  the  court  in 
which  he  was  acquitted,  convicted  or  attainted,  or  the  pardon, 
which  is  likewise  a  matter  of  record:  the  counsel  for  the  prose- 
cution must  then  deny  the  existence  of  the  record,  by  replying 
nul  tiel  record,  or  that  there  is  no  such  record,  which  puts  in  issue 
not  only  the  existence,  but  the  validity  of  the  record,  and  the  de- 
fendant must  verify  his  plea,  not  by  the  testimony  of  witnesses 
to  the  jury,  but  by  presenting  the  record  to  the  court,  who  are 
then  to  judge  of  the  sufficiency  of  his  plea. 

.4Bi.Com.  Though  in  civil  actions,  when  a  man  has  his  election  what  plea 

in  bar  to  make,  he  is  concluded  by  that  plea,  and  cannot  resort  to 
another  if  that  be  determined  against  him  ;  yet  in  criminal  prose- 
cutions, in  favorem  rt'fce,  when  a  prisoners  plea  in  bar  is  found 
against  him,  he  is  not  to  be  concluded  or  convicted  thereon,  but 
shall  have  judgment  of  respondeai  oustfr  and  may  plead  over  to 
the  felony  the  general  issue.  For  the  law  allows  many  pleas  by 
which  a  prisoner  may  escape  death,  but  only  one  plea  in  conse- 
quence whereof  it  can  be  inflicted ;  viz.  the  general  issue,  after 
un  impartial  examination  and  decision  of  the  facts  by  the  unani- 
mous verdict  of  a  jury. 

-jBi.  Com.  V.  The  general  issue,  or  plea  of  not  guilty.     In  case  of  an  in- 

dictment of  felony  or  treason,  there  can  be  no  special  justification 
put  in  by  way  of  plea.  As,  on  an  indictment  for  murder,  a  man 
•  annot  plead  that  it  was  in  his  own  defence  against  a  robber  on 
'•.he  highway,  or  a  burglar  ;  but  he  must  plead  the  general  issue, 


INDICTMENT, 

aot  guilty,  and  give  this  special  matter  in  evidence.  For  (besides 
that  these  pleas  do  in  effect  amount  to  the  general  issue  ;  since,  if 
true,  the  prisoner  is  most  clearly  not  guilty)  as  the  facts  in  trea- 
son are  laid  to  be  done  prodilorie  et  contra  ligeanticc  SUCK  debi- 
tum,  and  in  felony,  that  the  killing  was  done  fdonice  ;  these 
charges  of  a  traitorous,  or  felonious  intent,  are  the  points  and  very 
gist  of  the  indictment,  and  must  be  answered  directly,  by  the 
general  negative,  not  guilty  ;  and  the  jury,  upon  the  evidence,  will 
take  notice  of  any  defensive  matter,  and  give  their  verdict  ac- 
cordingly, as  effectually  as  if  it  were,  or  could  be  specially  pleaded. 
So  that  this  is,  upon  all  accounts,  the  most  advantageous  plea 
for  the  prisoner. 

Upon  his  appearance,  the  defendant  either  confesses  the  indict-   Cp 

••  A  t         TT          I  •  e       •          •     i  i    clictraent,     . 

ment,  traverses  1 1,  or  stands  mute.  Upon  his  confession,  judgment  (L,\ 
passes  against  him  ;  but  where  the  confession  proceeds  from  fear, 
or  ignorance,  th«  judge  may  refuse  to  receive  it.  So,  after  not 
guilty  pleaded,  he  may  relinquish  the  verification  of  his  plea,  and 
confess  the  indictment.  Of  the  traverse  or  denial  of  the  indict- 
ment, by  pleading  not  guilty,  anterfoits  acquit,  &LC.  notice  has 
been  taken  above. 

"  In  all  cases  of  treason  or  felony,  when  the  party  indicted 
shall,  on  being  arraigned,  obstinately  stand  mute,  or  refuse  to  plead 
and  be  tried  in  due  course  of  law,  such  obstinately  standing  mute, 
or  refusal  to  plead  and  be.  tried  as  aforesaid,  shall  be  adjudged  to 
be  a  denial  of  the  facts  charged  in  the  indictment,  and  the  trial 
shall  thereupon  proceed  in  like  manner,  and  the  record  shall  be 
in  the  same  form,  and  the  same  judgment  shall  be  given  against 
the  said  party,  if  found  guilty,  as  if  such  party,  on  being  arraigned, 
had  pleaded  not  guilty."  Sess.  56.  c.  8.  s.  *1.  1  R.  L  494. 

It  has  been  a  question  much  agitated,  whether  the  court  could   People  r.Oj- 
discharge  a  jury  without  their  giving  in  a  verdict.    It  is  now,  how-    cas.'soi. 
ever,  settled  by  the  supreme  court  of  this  state,  that  there  are  instan- 
ces in  which  the  court  may,  in  their  sound  discretion,  discharge  the 
jury  impannelled  to  try  the  offence,  and  in  such  case  put  the  pri- 
soner a  second  time  upon  his  trial,  at  least  in  a  trial  for  a  misde- 
meanour, and  perhaps  in  a  case  of  felony. 

The  People  v.  Den/on,  was  an  indictment  for  a  misdemeanour  2  jphm.  Cai- 
at  the  general  sessions  of  the  peace.  Per  curiam.  This  was  an 
indictment  for  a  misdemeanour,  and  the  jury  after  being  sent  out 
several  times,  and  returned  to  the  bar,  could  not  agree  on  a  ver- 
dict, and  were  discharged  by  the  court,  without  the  consent  of  the 
defendant.  The  power  of  discharging  a  jury  in  cases  of  misde- 
meanours, as  in  civil  cases,  rests  in  sound  discretion,  and  is  to  be 
exercised  with  great  caution.  When  every  reasonable  endeavour 
ha»  been  used  to  obtain  a  verdict,  and  it  is  found  that  the  jury 
cannot,  or  will  not  agree,  they  must,  ex  necessitate,  be  discharged. 
We  think  that  the.  discretion  of  the  court  below  was  duly  exer- 
feised  in  the  present  case,  and  that  the  discharge  was  necessary 
and  proper. 

r  25  1 


194  INDICTMENT. 


So  if  a  prisoner  be  found  to  be  insane,  or  in  a  fit,  or  be  taken 
CM.  SOL.  per  in  labour,  or  if  a  juror  escape  from  bis  fellows  and  go  off*,  or  be 
Ken:,;.  taken  in  a  fit,  or  be  intoxicated;  in  all  ea,  it  has  been 

ruled,  that  the  court  miy  discharge  the  jury,  and  remand  the 
prisoner  for  another  trial.  The  rule  that  a  jury  cannot  be  dis- 
charged in  capital  cases  has  been  questioned,  and  many  exceptions 
to  its  universality  are  conceded  to  ex 

Ple"fl*w?5'       But  where  a  juror  was  withdrawn  by  the  public  prosecutor. 
mi    without  the  consent  of  the  prisoner,  merely  because  he  was  un- 
rr'  prepared  with  bis  evidence,  it  was  held  that  the  defendant  could 
not  be  tried  a  second  time  on  the  same  indictment.      The  pri- 
soner was,  however,  again  indicted  for  the  same  offence,  and  the 
plea  of  anterfmte  acquil,  held  to  be  no  bar. 

The  prisoner  was  indicted  at  the  sessions  for  grand  larc 
on  several  indictments.  The  jury  was  sworn  and  impanoelled. 
and  after  giving  a  verdict  on  the  first  indictment,  they  separated 
and  went  to  a  tavern,  and  then  returned  into  court,  when  the  pri- 
soner was  tried  by  the^same  jury  on  the  other  indictments,  and 
found  guilty  ;  the  cause  was  removed  to  the  supreme  court  by 
certiomri,  and  it  was  held  that  the  proceedings  on  the  other  in- 
dictments were  irregular.  The  court,  however,  said  that  they 
would  give  no  opinion  whether  there  ought  to  be  a  new  trial  or 
not,  but  would  recommend  the  prisoner  for  a  pardon. 

VI.  Judgment. 

If  the  defendant  be  convicted  upon  aa  indictment  by  confes- 
4BLCo*k  sion  or  verdict,  there  shall  be  judgment  against  him.  unl- 

can  allege  something  in  arrest  or  stay  of  the  judgment  ;  as  some 
defect  in  the  indictment  :  and  if  the  objections  be  valid,  the  whole 
proceedings  shall  be  set  aside,  but  the  party  may  be  indicted 
again. 

IQ  a'l  cases  of  felony  and  in  some  misdemeanours,  the  nature 
and  extent  of  the  punishment  which  the  court  is  to  direct  to  be 
inflicted,  is  prescribed  and  limited  by  the  various  statutes  which 
are  referred  to  in  the  several  parts  of  this  compilation.  In  most 
cases  of  misdemeanours,  a  d  v  power  of  inflicting  fine 

and  imprisonment  is  vested  in  the  court,  according  to  th 
nousness  and  n  of  the  offence  and  the  situation 

enumerable  circum?  hich  they  must 

judge  of  :t  which  it  is  impossible  to  anticipate. 

defendant  was  indicted  for  an  assault  and  batter}-,  and  was 
convicted  upon  his  own  confession  in  open  court,  but  the  prosecu- 
tor offered  no  evidence  in  aggravation,  nor  the  defendant  in  exten- 
rhe  offence.     Per  curium,     No  circumstances   attend- 
ic  offence  on  either  side  being  shown,  the  court  have  no  cri- 
terion by  which  to  regulate  their  discretion  in  fixing  the  punish- 
ment,     We  are  therefore   bound   to  consider  it  as  a  commot 
offence  ;  and  accordingly  impose  a  fine  of  one  dollar. 


INFANT. 


INFANT. 

Infancy,  by  the  common  law,  continues  until  the  age  of  twenty- 
one  in  both  sexes  ;  but  it  does  not,  during  the  whole  of  that  period,  20,21. 
furnish  an  excuse  for  the  commission  of  a  crime.  In  every  cri- 
minal offence,  and  in  every  misdemeanour,  the  intent  with  which 
the  act  was  perpetrated  forms  an  essential  ingredient,  so  that  if 
by  reason  of  the  youth  of  the  offender  it  may  be  presumed 
that  he  was  incapable  of  exercising  his  will,  and  could  have 
no  choice  between  good  and  evil,  the  law  will  adjudge  the 
criminal  intent  to  be,  wanting.  The  liability  of  an  infant  is  divisi- 
ble into  three  periods  :  in  the  first,  the  law  adjudges  him  incapa- 
ble of  a  crime  :  in  the  second,  the  law  will  not  presume  a  criminal 
intent,  and  he  may  or  may  not  be  guilty,  according  to  circumstances, 
as  well  of  age  as  of  capacity.  In  the  third,  which  commences 
long  before  his  civil  incapacity  is  removed,  he  stands  on  no 
better  footing  than  a  defendant  of  full  age,  and  is  regarded  as 
doll  capax. 

1.  Fourteen  is  the  common  standard  at  which  both  males  and   iHale,  P.  < 
females  are,  by  our  law,  obnoxious  to  punishment,  for  this  is  the 

age  of  discretion  at  which  the  law  presumes  them  to  be 
doli  capaccs. 

2.  Between  seven  and  fourteen  an  infant  shall  prima  facie  be  4  BI-  Com 
adjudged  to   be  doli  incapax  ;  yet  if  it  appear  to  the  court  and 

jury,  that  he  was  doli  capax,  and  could  discern  between  good  and 
evil,  he  may  he  convicted.  But  in  all  such  cases  the  evidence  of 
that  malice  which  is  to  supply  the  deficiency  of  years,  ought  to 
be  strong  and  clear  beyond  all  doubt  and  contradiction. 

3.  An  infant  of  seven  years  or  under  cannot  be  guilty  of  felo-   *  Hale,  P.  c. 
ny,  whatever  circumstances  proving  discretion   may  appear;  for 

in  this  case  the  presumption  of  his  wanting  discretion  is  so  strong, 
that  no  averment  shall  be  received  against  it. 

As  to  common  misdemeanours,  the  law  does  in  some  cases  4B1.  Com^j. 
privilege  an  infant  under  the  age  of  twenty-one,  so  as  to  escape 
fine  and  imprisonment  :  and  particularly  in  cases  of  omission,  for 
not  having  the  command  of  his  fortune  till  twenty-one,  he  wants 
the  capacity  to  do  those  things  which  the  law  requires.  But 
where  there  are  any  notorious  breach  of  the  peace,  a  riot,  battery. 
or  the  like,  for  these,  an  infant  above  the  age  of  fourteen  is 
equally  liable  to  suffer  as  a  person  of  the  full  age  of  twenty  -one. 

"Where  a  fact  is  made  felony,  or  treason,  by  statute,  it  extends  *  Hale>  p-c- 
as  well  to  infants  above  fourteen,  as  to  others. 

The  ages  of  male  and  female  are  different  for  different  purposes,  i  BI.  Com. 
A  male  at  twelve  years  old  may  take  the  oath  of  allegiance  ;  at  <63> 
fourteen,  is  at  years  of  discretion,  and  therefore  may  consent  or 
disagree  to  marriage,  may  choose  his  guardian,  and  if  his  discre- 
tion be  actually  proved,  may  make  his  testament  of  his  personal 
^state  ;  at  seventeen  may  be  an  executor  ;  and  at  twenty-one  is 


196  INFANT. 

at  his  own  disposal,  and  may  aliene  his  lands,  goods,  arid  chattels 
A  IV:, uilc  also,  nt  seven  years  of  age,  may  be  betrothed  or  given 
in  marriage ;  at  nine  is  entitled  to  dower  ;  at  twelve  is  at  years 
of  maturity,  and  therefore  may  consent  or  disagree  to  marriage, 
and,  if  proved  to  have  sufficient  discretion,  may  bequeath  her 
personal  estate  ;  at  fourteen  is  at  years  of  legal  discretion,  and 
may  choose  a  guardian ;  at  seventeen  may  be  executrix  ;  and  at 
twenty-one  may  dispose  of  herself  and  her  lands.  So  that  full 
age  in  male  or  female  is  twenty-one  years,  which  age  is  comple- 
ted on  the  day  preceding  the  anniversary  of  a  person's  birth,  who 
till  that  time  is  an  infant,  and  so  stiled  in  law. 

Co.  Litt.  2  b.       An  infant  is  capable  of  inheriting,  for  the  law  presumes   him 
535.°'  capable  of  property;  also,  an  infant  may  purchase,  because  it  is 

intended  for  his  benefit,  and  the  freehold  is  in  him  till  he  disagree 
thereto  ;  and  if  at  his  full  age  the  infant  agrees  to  the  purchase, 
he  cannot  afterwards  avoid  it ;  but  if  he  dies  during  his  minority, 
his  heirs  may  avoid  it ;  for  they  shall  not  be  bound  by  the  con- 
tracts of  a  person  who  wanted  capacity  to  contract. 

3Bac.  Abr.  Generally,  contracts  made  by  infants  are  voidable  at  his  elec- 
"53'  S94'S95'  tion  ;  but  to  this  there  is  an  exception,  that  an  infant  may  bind 
himself  to  pay  for  his  necessary  meat,  drink,  apparel,  medicine, 
and  such  other  necessaries ;  and  likewise  for  his  good  teaching, 
and  instruction,  whereby  he  may  profit  himself  afterwards  :  and 
an  action  will  lie  against  him  on  his  promise  to  pay  for  such 
necessaries  ;  but  if  he  enter  into  an  obligation  with  a  penalty  for 
the  payment  of  them,  this  shall  not  bind  him. 

1  str.  168.  As  necessaries  for  an  infant's  wife  are  necessaries  for  him,  he  is 

W.  chargeable  for  them,  unless  provided  before  the  marriage, in  which 

case  he  is  not  chargeable,  though  she  uses  them  afterwards  :  an  in- 
fant also  is  liable  to  an  action  for  the  nursing  of  his  lawful  child, 
3Bae.Abr.  As  the  contract  of  an  infant  for  wares,  for  the  necessary  carry- 
ing on  his  trade,  whereby  he  subsists,  shall  not  bind  him,  so  nei- 
ther shall  he  be  liable  for  money  which  he  borrows  to  lay  out  for 
necessaries  ;  and  therefore  the  lender  must  at  his  peril  lay  it  out 

BirSr*  f°r  n'm»  or  see  ^iat  **  1S  'a'^  out  'n  necessaries. 
Uoiim  Cas.        If  an  infant,  at  the  time  of  making  a  bond,  fraudulently  allege 

32J3ac.  Abr.  that  he  is  of  full  age,  the  bond  is  nevertheless  voidable  :  so,  if  an 

•"s-.  infant  draw  a  bill  of  exchange,  he  is  not  liable  on  the  custom  of 

3  Ctunes'Rep. 

323  merchants  ;  nor  if  he  carry  on  trade,  can  his  note  be  enforced 

Taoderiiey-  against  him  by  a  payee  who  was  ignorant  of  his  infancy, 
den's  Adm'rs,       A  negotiable  note  given   by  an  infant,  even  for  necessaries,  is 

jojo'.i    Rep.  ^.^  _  nej'tner  can  he   acct,pt  a  bill  of  exchange  for  necessaries ; 

iT*?mbRS53<  nor  can  ^e  bind  himself  by  stating  an  account 

40.  '  An  infant  who  lives  with,  and  is  maintained  by  his  father,  cannot 

Toil  "E  V'  bind  himself  for  necessaries.  » 

ojohns. Rep.       if  an  infant  keeps  an  inn,  an  action  on  the  case  upon  the  cus- 

3  Bac.  Abr.  torn  of  inns  will  not  lie  against  him. 

*8p'ai.   Abr          But  an  infant  is  liable  for  torts  and  injuries  of  a  private  nature  ; 

.wz.  and  if  he  commit  a  trespass  against  the  person  or  possession  of 

;  Hawk.  P.  C, 

c.  1.  s.  S. 


INFORMATION.  197 

Another,  lie  shall  be  compelled  in  a  civil  action  to  give  satisfaction 
for  the  damage. 

An  infant  cannot  sue  in  proper  person  or  by  attorney,  but  by  i  TMd,  6», 
his  next  friend,  (prochein  amy)  to  be  assigned  by  the   court  for  M<x.key  v. 
that  purpose,  unless  where  he  sues  as  co-executor  with   others,   Gray, 
in  which  case  the  executors  of  full  age  may  appoint  an  attorney  192. 
for  themselves  and  the  infant;  and  hence  he   cannot  be  an  in-   p'*'ttT> 
former  upon  a  penal  statute  ;  and  when  sued,  he  must  appear  and   11  Johns, 
defend  by  guardian  appointed  by  the  court  ad  litem,  even  when    i  i^u,  72. 
he  is  sued  as  co-executor  with  others.     The  power  of  appointing 
a  guardian  and  prochein  amy,  is  incident  to  a  justice's  as  well  as 
to  every  other  court ;  and  if  an  infant  defendant  appear  by  at- 
torney, iti  s  an  error  for  which  the  judgment  will  be  reversed  ;  but 
if  an  infant  plaintiff  prosecute  by  attorney,  the  error  will  be  cured 
by  the  statute  of  jeofails.     An  infant  plaintiff  is  not  liable  to  costs, 
but  only  his  prochein  amy  ;    yet  costs  are  payable  by  an   infant 
defendant. 

The  question  of  infancy  is  to  be  tried  by  inspection  of  the  court,  j8^ac<  Atr* 
or  by  the  jury.  i  Johns.  Cas. 

In  an  action  before  a  justice,  the  defendant  pleaded  infancy,  and   jjLersoil  v. 
the  justice  from  inspection  was  of  opinion  that  he  was  not  an  in-   ^''{'""•j, 
fant,  and  did  not  appoint-a  guardian,  and  the  jury  found  that  the   437.  M' 
defendant  was  not  an  infant.     On  the  return  to   the  certiorari} 
it  was  held,  that  the  infancy  of  the  defendant  could  not  be  as- 
signed for  error,  it  being  against  the  record  and  the  fact  as  found 
by  the  jury. 


INFORMATION. 

Informations  are  of  two  sorts;  first,  those  which  are  partly  at  4  Blade. 
ihe  suit  of  the  people,  and  partly  at  that  of  an  individual  ;  and  Com<  50B- 
secondly,  such  as  are  only  in  the  name  of  the  people.  The  for- 
mer are  usually  brought  upon  penal  statutes,  which  inflict  a  pe- 
nalty upon  conviction  of  the  offender,  one  part  to  the  use  of  the 
people,  and  another  to  the  use  of  the  informer,  and  are  a  sort  of 
qui  law  actions,  only  carried  on  by  a  criminal  instead  of  a  civil 
process  :  the  other  are  filed  ex  ojficio  incases  of  misdemeanours, 
and  other  offences  under  the  degree  of  felony,  by  the  public  pro- 
secutor ;  but  an  information  is  not  allowable  in  cases  of  felony, 
for  the  effect  of  it  is,  to  deprive  the  defendant  of  the  advantage 
of  having  the  charge  against  him  passed  upon,  in  the  first  instance, 
by  a  grand  jury.  If  the  court  permit  the  information  to  be  filed 
it  must  be  tried  by  a  petit  jury,  as  in  other  cases. 

Prosecutions  by  way  of  ex  officio  information  are  of  very  rao-e 
occurrence  in  this  state* 


AND  TAVERNS. 


INNS  AND  TAVERNS. 

-TBac.Abr.  The  dufy  of  innkeepers  extends,  chiefly  to  the  entertaining  .ind 
harbouring  of  travellers,  finding  them  victuals  and  lodgings,  and 
securing  the  goods  and  effects  of  their  guests  ;  and  therefore  if 
one  who  keeps  an  inn,  refuse  either  to  receive  a  traveller  as  a 
guest  into  his  house,  tfr  to  find  him  victuals  or  lodging,  upon  his 
tendering  him  a  reasonable  price  for  the  same,  he  is  not  only  liable 
to  render  damages  for  the  injury  in  an  action  on  the  case,  at  the 
suit  of  the  party  grieved,  but  also  may  be  indicted  and  fined. 
For  he,  who  takes  upon  himself  a  public  employment,  must  serve 
the  public  as  far  as  his  employment ;  therefore,  an  innkeeper  shall 
not  only  answer  for  his  own  neglects,  but  also  for  the  neglects  of 
those  who  act  under  him,  though  he  should  expressly  caution 
against  it. 

3  B»c.  Abr.  Innkeepers  are  chargeable  for  the  goods  of  guests  stolen  or  lost 
out  of  their  inns,  and  this  without  any  contract  or  agreement  for 
that  purpose.  But  if  the  guest  be  robbed  by  his  servant,  or  one 
who  comes  with  him,  he  shall  have  no  action  against  the  host. 

L?*£ £**'  Innkeepers  may  detain  the  person  of  the  guest  for  what  he  eats 
till  payment;  and  so  he  may  detain  the  horse,  for  what  the  horse 
eats,  but  not  for  what  is  consumed  by  the  guest  ;  and  this  with- 
out any  agreement. 

Not  every  person  can  keep  an  inn,  but  for  that  purpose  it  is 
necessary  to  obtain  a  license  from  the  commissioners  of  excise  : 
the  statutory  provisions  relating  to  licenses,  the  regulation  of  inns, 
and  the  retailing  of  liquors,  will  occupy  the  remainder  of  this 
title,  and  will  be  comprized  under  the  following  heads  : 

I.   Commissioners  of  excise. 
II.  Licenses,  when  and  how  to  be  granted. 

III.  Regulations  of  Inns. 

IV.  Retailing  liquors  without  license. 
V.  Selling  to  servants,  ^-c. 

VI.  Selling  on  credit. 
VII.  Prosecutions  under  the  act. 

I.  Commissioners  of  excise. 

By  the  act  to  lay  a  duty  on  strong  liquors,  and  for  regulating 
inns  and  taverns,  sect.  1 .  a  commissioner  is  to  be  appointed,  by  the 
governor  and  council  of  appointment,  in  the  city  of  New-York, 
whose  compensation  is  regulated  by  sect.  5,  "  for  collecting  the 
duty  of  excise  of  and  from  the  several  retailers  of  strong  and 
spirituous  liquors  in  the  said  city."  And  for  the  purpose  of  col- 
lecting the  duty  in  the  several  towns  of  this  state,  it  is  provided, 
that  the  following  persons  shall  be  commissioners:  "The  supor- 
i  i'jor  of  each  town,  and  any  two  justices  of  the  peace  resident 


INNS  AND  TAVERNS.  .  199 

therein,  or  in  case  there  shall  not  be  two  justices,  or  they  shall  be 
absent,  then  such  neighbouring  justice  or  justices  in  the  same 
county,  as  the  supervisor  of  such  town  shall  notify  and  associate 
with  him  for  that  purpose.  Sess.  24.  c.  1G4-.  s.  1.  1  R.  L.  17£>. 

"The  st-veral  commissioners  of  excise  within  this  state,  ex-  t.2, 
repting  the  cities  of  New-York,  Albany,  Hudson,  and  Schenec- 
tady,  shall  annually,  and  immediately  before  they  grant  any  license 
to  any  person  to  keep  an  inn  or  tavern,  or  sell  or  retail  strong  or 
spirituous  liquors,  take  and  subscribe  the  following  oath  before: 
one  of  the  justices  of  the  peace  of  the  county  in  which  they 
reside  : 

"  / ,  one  »fthe  commissioners  of  excise  for  the  town  of , 

in  the  county  of ,  do  solemnly  swear,  in  the  presence  of  almighty 

Cod,  that  I  will  not,  on  any  account  or  pretence  whatsoever,  grant  any 

license  to  any  person  within  the  said  toitm  of for  the  purpose  of 

keeping  an  inn  or  tavern,  except  where  it  shall  appear  to  me  to  be  ab- 
solutely necessary  for  the  benefit  of  travellers  ;  and  that  I  will  in  all 
things,  while  acting  as  a  commissioner  of  excise,  do  my  duty  accord- 
ing to  the  best  of  my  judgment  and  ability,  without  fear,  favour,  or 
partiality,  agreeable  to  law." 

"  And  the  person  before  whom  such  oath  shall  be  taken  and 
subscribed,  shall  certify  the  day  and  year  in  which  such  oath  was 
taken,  and  that  the  same  was  so  taken  and  subscribed  before  him 
on  the  back  of  the  paper  on  which  the  same  oath  is  so  subscribed  ; 
and  the  person  taking  and  subscribing  the  same,  shall,  within  ten 
days  thereafter,  send  or  deliver  the  same  to  the  clerk's  office  of 
the  town  for  which  he  so  acts  as  a  commissioner  of  excise,  and 
the  clerk  of  such  town  shall  file  the  same  among  the  papers  in  his 
said  office  ;  and  if  any  person  who  is  hereby  directed  to  take  and 
subscribe  such  oath,  shall  presume  to  act  as  a  commissioner  of 
excise  without  having  taken  and  subscribed  the  same,  or  if  any 
person  shall  neglect  to  return  the  same  oath,  so  subscribed  and 
certified  as  aforesaid,  to  the  town  clerk,  to  be  filed  as  aforesaid, 
within  the  time  by  this  act  limited,  such  person  shall,  for  every 
such  neglect  or  refusal,  forfeit  the  sum  of  ten  dollars,  to  be  sued 
for  and  recovered  with  full  costs  of  suit  by  any  person  who  will 
prosecute  for  the  same,  before  any  justice  of  the  peace  of  the 
county  where  such  neglect  or  refusal  shall  happen  ;  the  one  moiety 
of  which  sum,  when  recovered,  shal)  be  paid  by  the  person  so  suing 
and  receiving  the  same,  to  the  overseers  of  the  poor  of  the  town  w 
which  such  neglect  shall  happen,  for  the  use  of  said  town,  and 
the  other  moiety  shall  be  for  the  use  of  the  person  so  suing  for 
the  same." 

II.  Licenses)  ivhcn  and  how  to  be  granted. 

"  It  shall  be  lawful  for  the  commissioners  of  excise  in  the  se- 
veral towns  of  this  state,  annually,  by  writing;  under  their  respective 
hands  and  seals,  and  in  the  several  cities  aforesaid,  annually,  in  ih* 
manner  directed  by  their  respective  cli^.rtpr?.  T  by  ?>iy  statute  pr«-  . 


200  IXNS  AND  TAVERNS. 

scribing  such  manner  therein,  to  grant  to  the  several  pcrsens  wno 
shall  reside  in  their  respective  cities  or  towns,  and  apply  for  thn 
same,  a  license  to  retail  strong  or  spirituous  liquors  under  five  p;al- 
lons,  which  said  respective  licenses  shall  continue  in  force  from 
the  time  of  granting  the  same  until  the  first  Tuesday  of  May  next 
ensuing  the  date  thereof,  and  no  longer  ;  Provided  always,  that  no 
license  shall  be  granted  in  any  of  the  said  cities  to  retail  stronger 
spirituous  liquors  for  the  purpose  of  keeping  au  inn  or  tavern,  un- 
less it  shall  appear  to  the  commissioners  thereof  that  an  inn  or 
tavern  at  the  place  at  which  such  permit  is  applied  for  is  neces- 
sary for  the  accommodation  of  travellers,  and  that  the  person  ap- 
plying for  such  license  is  of  good  character,  all  of  which  shall  be 
inserted  in  every  such  license  ;  And  provided  further,  that  no 
license  shall  be  granted  in  any  town  of  this  state,  unless  three  com~ 
missioners  shall  be  present  at  the  granting  thereof,  of  which  three 
the  supervisor  of  the  town  shall  always  be  one,  nor  until  they,  or 
a  majority  of  them  then  so  present,  have  satisfactory  evidence 
that  the  person  who  applies  for  such  license  is  of  good  moral 
character,  and  of  sufficient  abilities  to  keep  an  inn  or  tavern,  and 
that  he  has  accommodation  to  entertain  travellers,  and  that  an 
inn  or  tavern  is  absolutely  necessary,  at  the  place  where  such  per- 
son resides  or  proposes  to  keep  such  tavern,  for  the  actual  accom- 
modation of  travellers  as  aforesaid  ;  all  of  which  they,  or  a  ma- 
jority of  them,  are  hereby  directed  to  put  in  writing,  by  way  of  a 
resolve  of  the  said  board,  and  severally  subscribe  the  same,  and 
within  twenty  days  thereafter  shall  return  such  resolve  to  the 
office  of  the  town  clerk  of  the  town  for  which  they  are  commis- 
sioners :  who  is  hereby  directed  to  file  the  same,  and  deposit  it 
among  the  other  papers  of  such  town  ;  and  all  licenses  obtained, 
except  the  aforesaid  board  of  commissioners  are  so  actually  pre- 
sent at  the  granting  of  the  same,  shall  be  considered  as  abso- 
lutely void."  Sess.  2-i.  c.  64-.  s.  3.  1  R.  L.  177. 

Orp'rt  T.  From  the  return  to  the  certiorari  in  this  cause,  it  appeared  that  the 

iui°wm!°&c.  plaintiff  in  error  was  prosecuted  by  the  defendant  in  error  qvitam, 
i  Johu».Rep.  gcc.  before  a  justice  of  the  peace,  to  recover  the  penalty  of  twen- 
ty-five dollars  for  selling  strong  liquors  by  retail  without  having  a 
license  according  to  the  act.  The  defendant  below  had  been  ap- 
pointed and  licensed  as  a  tavern  keeper,  at  a  meeting  of  the  su- 
pervisor and  eight  justices  and  commissioners  of  excise,  by  a 
majority  of  them  present,  and  his  license  was  signed  by  five  of 
the  justices,  but  not  by  the  supervisor,  who  was  present,  and  was 
requested  to  sign  it.  Judgment  was  given  for  the  plaintiff  below 
against  the  present  plaintiff  in  error. 

Per  curiam.  The  license  produced  by  the  plaintiff  below  was 
valid.  The  act  of  a  majority  of  the  commissioners  of  excise  wa§ 
sufficient,  and  it  was  so  considered  in  the  case  of  Palmer,  qui  tarn, 
&tc.  v.  Downey,  decided  in  this  court,  in  October  term,  1801.  (vide. 
S.  C.  infra.)  The  supervisor  may,  in  his  discretion,  associate  more 
than  two  ju«ticrs  with  him.  as  commi^icTicrs  of  excise.  Thenum- 


1XNS  AND  TAVERNS.  201 

»»«•!•  is  not  limited  by  the  act  to  them  and  no  more.  Tlie  consent 
of  the  .tipervisor  is  not  indispensable.  If  a  majority  of  the  com- 
missioners present  si^n  the  license,  it  is  sufficient.  The  judgment 
below  must  be  reversed. 

This  was  an  action  of  debt  for  several  penalties  under  the  act  to  Palmer,  q«i 
lay  a  duty,  &c.  The  defendant,  on  the  8th  day  of  April,  17  9,  ap-  SJTiJe^"*  *' 
plied  to  the  plaintiff,  who  was  supervisor  of  the  town  of  Ballstown,  ;•  J«>i»u.Casc*; 
and  two  justices,  While  and  Waters,  then  sitting  as  commissioners, 
Cor  u  license  to  retail  spirituous  liquors  for  the  purpose  of  keeping 
an  inn.  The  defendant,  paid  White,  ene  of  the  justices,  five  dol- 
lars, the  sum  required  for  such  license  ;  who,  without  the  assent 
of  the  other  commissioners,  received  the  same,  and  paid  it  over 
to  the  overseers  of  the  poor  of  the  town.  The  two  justices  had 
given  the  defendant  encouragement  to  expect  a  license,  but  the 
plaintiff  and  Waters  afterwards  refused  it.  The  defendant  sold 
liquors  both  before  and  after  the  8th  day  of  April.  On  the  third 
day  of  May  ensuing,  the  plaintiff,  with  White  and  Ball,  justices, 
being  met,  but  not  as  commissioners,  the  defendant  renewed  his 
application,  which  was  rejected  by  the  plaintiff,  on  the  ground  that 
they  were  not  then  assembled  as  commissioners.  But  White  and 
Ball  retired  into  another  room,  and  gave  the  license  required. 
The.  judge  who  tried  the  cause  suffered  the  license,  though  ob 
}ected  to,  to  be  given  in  evidence,  and  charged  the  jury  that, 
though  irregularly  obtained,  it  was  sufficient  to  protect  the  de- 
fendant as  a  third  person  ;  that  it  should  by  relation  be  considered 
as  having  been  given  on  the  8th  day  of  April  preceding  ;  and  that 
as  there  had  been  no  board  of  commissioners  between  the  first 
day  of  March  (on  which  day  all  permits  expire)  and  the  8th  day 
of  April,  the  defendant  was  justified,  ex  necessitate,  in  continuing 
to  retail  spirituous  liquors  during  such  interval.  They  accord- 
ingly gave  a  verdict  for  the  defendant.  The  plaintiff  now  moved 
to  set  aside  this  verdict,  on  the  ground  of  a  misdirection. 

LI.UIS,  J.  delivered  the  opinion  of  the  court.  After  adverting 
to  the  hardship  of  the  case  against  the  defendant,  he  proceeds  : 
Two  questions  arise,  1.  Is  the  license  a  legal  one  ?  2.  If  not,  is  the 
defendant  nevertheless  protected  by  it  ?  By  the  second  clause  oi 
the  act,  the  authority  is  given  to  the  supervisor  and  any  two  jus- 
tices ;  and  by  the  proviso  to  the  same  clause,  no  license  is  to  be 
granted,  unless  three  commissioners  shall  be  present  at  the  granting 
thereof.  Now  it  is  stated  in  the  case,  that  White  and  Ball  retired 
from  the  room  where  the  supervisor  was,  and  signed  and  delivered 
the  license,  &c.  Three  commissioners  then  were  not  present  ar 
this  part  of  the  ceremony,  and  it  does  not  appear  that  even  a  ma- 
jority, when  the  three  were  together,  granted,  or  even  agreed 
to  grant  a  license  ;  so  that  the  act  has,  in  no  way,  been  com 
plied  with. 

Another  objection  is,  that  Ball  does  not  appear,  from  the  casr. 
to  have  been  legally  a  comni'iHsioner  of  excise  for  that  year.  For 
the  jurisdiction  is  vested  in  the  supervisor  and  any  two  justices ; 


202  l-NNS  AND  TA\ 

and  of  course,  though  every  justice  resident  within  the  town 
might  have  perhaps  attended  the  first  meeting :  yet  as  White  and 
Witters  only  did  attend  with  the  supervisor,  the  jurisdiction  at- 
tached exclusively  to  them. 

One  further  objection  occurs :  it  is  at  least  a  question  whether 
any  jurisdiction  of  excise  vests  in  the  justices,  until  noticed  by. 
und  associated  with  the  supervisor.  This  is  certainly  the  case, 
where,  for  default  of  resident  justices,  others  are  to  be  resorted  to. 
Now  it  does  not  appear  that  Ball  resided  within  the  town,  or  was 
ever  notified  by,  and  associated  with  the  supr  id  the  pre- 

sumption is  against  it,  from  his  not  having  attended  the  first  meet- 
ing. If  either  of  these  reasons  be  sound,  the  license  set  up  as  a 
justification  is  illegal,  from  a  want  of  authority  to  grant  it  ;  and 
ihe  only  remaining  question  is,  whether  it  was,  notwithstanding,  a 
competent  defence  to  the  defendant.  If  the  objection  to  it  rested 
on  the  ground  of  irregularity  alone,  its  incompetence  might  be 
doubted  :  but  it  goes  to  a  want  of  jurisdiction  or  power  to  grant, 
ia  the  justices  who  signed  it ;  and  the  defendant  is  certainly  liable 
io  the  penalty,  if  kis  license  is  not  derived  from  the  competent 
authority.  lie  knew  all  the  circumstances,  and.the  precise  situa- 
tion ia  which  the  two  magistrates  who  signed  his  license  stood  ; 
and  he  is  bound  to  know  that  hi?  license  is  derived  from  a  pure 
:md  legal  source,  before  he  acts  under  it ;  at  least  there  o;. 
be  strong  colour  of  right  on  his  side. 

We  are,  therefore,  of  opinion,  that  the  verdict  must  ho  set  aside, 
and  R  new  trial  awarded  :  but  that  on  such  trial,  no  testimony  of 
forfeiture,  previous  to  the  meeting  of  the  commissioners  on 
the  eighth  of  April,  be  admitted  :  for  public  inns  being  for  the 
public  convenience,  a  traveller  is  not  to  be  barred  the  necessary 
refreshments  they  afford,  from  the  neglect  of  public  officers, 
trial  granted. 

By  the  fourth  section  of  the  act,  the  duty  of  excise  for  a  lir  < 
to  retail  strong  liquors  in  the  city  of  New-York,  shall  not  be  less  than 
five,  or  more  than  fifty  dollars,  to  be  determined  by  the  commis- 
sioners ;  and  ';  it  shall  also  be  lawful  for  the  commissioners  of  ex- 
cise in  the  city  of  Hudson,  and  in  the  several  towns  of  this  state, 
tn  determine  the  sum  which  each  person  applying  for  a  license 
=hall  pay  for  the  same,  not  beins  less  than  five  dollars,  nor  more 
than  thirty  dollars,  as  a  duty  of  excise,  which,  together  with  the 
sum  of  seventy-five  cents  as  a  fee  to  the  respective  commissioners 
for  granting  such  license,  shall  be  paid  to  them  by  the  person 
applying  for  such  license  before  the  same  be  issued  as  aforesaid  ; 
and  the  snid  commissioners  are  required  to  keen  an  account  of 
the  persons  to  v*  horn  licenses  shall  be  granted,  and  of  the  sums 
I»y  them  paid  therefor,  and  to  file  the  same  with  the  clerk  of 
such  city  or  tc.wn,  on  or  before  the  first  day  of  M:ncli  in  • 
year:  and  shall  from  time  to  time,  without  delay,  nay  tliv  m 
•*o  :  cd  as  afo.  the  overt f 


INNS  AND  TAVERNS. 

poor  of  the  respective  cities  and  towns  for  which  they  are  coin 
nii.vsiouf  r.i,  to  be  applied  to  the  relief  of  the  poor  thereof. 

"  No  person  shall  bell  by  retail  any  strong  or  spirituous  liquors 
to  be  drank  in  his  or  her  house,  out-house,  yard,  or  garden,  unless 
*uch  person  shall  appear  before  a  justice  of  the  peace  of  the 
county  in  whirh  he  or  she  shall  reside,  or  if  in  either  of  the  said 
cities,  before  the  mayor,  or  in  his  sickness  or  absence,  the  recorder 
thereof,  and  enter  into  recognisance  to  the  people  of  the  state  ot' 
New-York  in  the  sum  of  one  hundred  and  twenty-five  dollars,  con- 
ditioned that  such  person  will  not,  during  the  time  that  such  per- 
son shall  keep  an  inn  or  tavern,  keep  a  disorderly  inn  or  tavern, 
or  suffer  or  permit  any  cock-fighting,  gaming,  or  playing  with 
cards  or  dice,  or  keeping  a  billiard  table,  or  other  gaming  table, 
01  shuflle-board,  within  the  inn  or  tavern  by  him  or  her  to  be 
kept,  or  within  any  out-house,  yard,  or  garden  belonging  there- 
unto; which  recognisance,  so  to  be  taken,  shall  be  lodged,  by  the  per- 
son Uefore  whom  the  same  shall  be  taken,  with  the  clerks  of  the  re- 
spective cities  or  counties  where  the  same  shall  be  taken  ;  and  if  any 
person  shall  be  convicted  of  an  offence  against  this  act,  itsjiall  be  law- 
ful for  the  courts  of  general  sessions  of  the  peace  in  the  respective 
cities  and  counties  in  this  state  to  suppress  the  license  of  such 
offender  ;  but  no  person  who  shall  be  licensed  to  retail  strong  li- 
quors, not  to  be  drank  in  his  or  her  house,  but  carried  elsewhere, 
shall  be  obliged  to  enter  into  recognisance  as  aforesaid."  s.  d. 

III.  Regulations  of  inns. 

"  Every  keeper  of  any  public  inn  or  tavern  in  this  state,  ex- 
cept in  the.  city  of  New-York,  shall  keep  in  his  house  at  least  two 
qiare  beds  for  guests,  with  good  and  sufficient  sheeting  and  co- 
\ering  for  such  beds  respectively,  and  provide  and  keep  good 
and  sufficient  stabling  and  provender  of  hay  in  the  winter,  and 
huy  or  pasturage  in  thtt  summer,  and  grain,  for  four  horses  or  other 
cattle,  more  than  his  own  stock,  for  the  accommodation  of  travel- 
lers, upon  pain  of  forfeiting,  for  every  neglector  default  of  having 
vither  of  the  articles  in  this  clause  before  mentioned,  the  sum  of 
five  dollars."  s.  9. 

"  Every  inn-holder  or  tavern-keeper  shall,  within  thirty  days 
after  pbtaining  his  license,  put  up  a  proper  sign,  on  or  adjacent 
to  the  front  of  his  house,  with  his  name  thereon,  and  keep  such 
.iign  up  during  the  time  he  shall  keep  an  inn  or  tavern,  under  the 
penalty  of  one  dollar  and  twenty-five  cents  for  every  month's 
neglect  thereof ;  and  if  any  person  who  shall  not  have  a  license 
as  aforesaid,  shall  erect  or  keep  up  such  sign,  he  shall  forfeit  the 
like  penalty  of  one  dollar  and  twenty-five  cents  for  every  week 
such  sign  shall  he  so  kept  up."  s.  15. 

';  It  shall  be  '•  emed  an  offence  against  the  people  of  this  state, 
for  any  person  lio  shall  keep  a  public  inn  or  tavern,  to  permit  or 
suffer  any  co  fighting,  playing  with  cards  or  dire,  or  to  keep 
any  billiard  table,  or  other  gaining  table,  or  shuffle-board,  withi;i 


11  .lo.ins. 
Rep.  179. 


1NNT8  AND  TAVERN 

hi$  or  her  house,  or  within  any  out-house,  yard,  or  g.irtlon  !>< 
ing  thereto,  or  therein  to  permit  any  kind  of  gaming  by  lot  or 
chance  ;  and  every  person  convicted  of  any  offence  against  this 
act,  shall  be  punished  by  fine  and  imprisonment,  or  either,  at 
the  discretion  of  the  court  in  which  any  such  conviction  shall  be 
had."  s.  8. 

IV.  Retailing  liquors  without  license. 

"  If  any  person  shall  aell  by  retail  any  strong  or  spirituous  liquors 
without  having  such  license  as  aforesaid,  or  if  any  person  shall 
?ell  any  strong  or  spirituous  liquors  to  be  drank  in  his  or  her 
house,  out-house,  yard,  or  garden,  without  having  entered  into 
such  recognisance  as  aforesaid,  every  person  who  shall  be  guilty 
of  either  of  the  offences  aforesaid  shall,  for  each  offence,  forfeit 
the  sum  of  twenty-five  dollars  :  Provided  always,  that  no  person 
shall  be  subject  to  be  prosecuted  by  virtue  of  this  act  for  selling 
metheglin,  currant  wine,  cherry  wine,  or  cider,  to  be  by  such  per- 
son made,  and  which  shall  not  be  drank  in  his  house,  out-house, 
yard  or  garden."  s.  7. 

ijweueev.  In  an  action  before  a  justice,  to  recover  the  penalty  for  selling 
liquors  without  a  license,  the  defendant  justified  under  a  parol 
license,  or  permission  from  the  supervisor  and  justices,  and  the 
jury  found  a  verdict  for  the  defendant  ;  but  on  the  removal  of  the 
cause  by  certiorari,  the  judgment  was  reversed.  Per  curiam.  The 
statute  requires  the  license  to  be  in  writing,  under  the  hand 
and  seal  of  the  respective  commissioners  authorized  to  grant  the 
same.  The  license  proved  by  the  defendant  was  not  such  a  one 
as  the  act  requires.  The  evidence  of  a  parol  license  ought  not, 
therefore,  to  have  been  received,  and  could  not  amount  to  an 
authority  to  sell  liquors.  The  offence  having  been  made  out, 
and  no  sufficient  justification  shown,  the  plaintiff  was  entitled  to 
recover. 

Motion  to  set  aside  a  verdict,  in  an  action  of  debt.  The  de- 
claration contained  sixteen  counts,  for  retailing,  not  having  a  license 

r  Johus.  Rep.  to  keep  an  inn.  The  cause  was  tried  at  the  circuit,  and  the  jury 
found  a  verdict  for  the  plaintiff  for  seventy-five  dollars.  The 
following  was  the  only  ground  of  objection  taken  notice  of  by 
the  court:  that  several  penalties  cannot  be  joined  in  one  declara- 
tion, and  that  only  one  penalty  could  be  recovered. 

Per  curiam.  The  seventh  section  ordains,  if  any  person  shall  selj 
strong  or  spirituous  liquors  by  retail,  without  having  such  lien  > 
if  any  person  shall  sell,  &ic.  to  be  drank  in  his  house,  &c.  without 
having  entered  into  such  recognisance,  every  person  who  shall  be 
guilty  of  either  of  the  offences  aforesaid,  shall,  for  encA  offence, 
forfeit  twenty-five  dollars.  Adopting  the  principle  which  guides 
in  the  construction  of  penal  statutes,  that  they  are  be  construed 
strictly,  the  forfeiture  of  twenty-five  dollars  is  not  incurred  for 
every  offence  against  cither  of  those  provisions,  but  the  words-. 
offence,  used  in  the  section,  impose  the  forfeiture  of  twenty- 


M'ajhburn, 
q'litam,  v. 
M'luroy, 


INNS  AND  TAVERNS.  205 

!ive  dollars  upon  the  offence  of  selling  without  a  license,  and  also 
twenty-five  dollars  for  the  offence  of  selling  to  lie  drank  in  Hie 
house,  &tc.  without  having  entered  into  a  recognisance.  The 
torms,  "  for  each  offence,'1'  in  other  words,  subject  the  offenders, 
in  either  of  those  cases,  to  one  forfeiture  for  each  of  the  two  enu- 
merated offences. 

The  eighteenth  section  provides,  that  whenever  any  suit  shall  bo 
commenced,  and  a  recovery  had  for  a  penalty,  for  selling  liquor? 
without  a  license,  such  recovery  shall  be  a  bar  to  all  prosecutions 
for  offences  of  the  like  nature,  committed  before  such  recovery. 

This  section  confirms  the  construction,  and  shows  that  thf 
legislature  intended  that  there  should  be  a  recovery  for  a  single 
penalty  only,  not  only  by  the  words,  "  and  a  recovery  had  for  a 
penalty,"  but  by  declaring  that  such  recovery,  that  is,  a  recovery 
for  a  penalty,  shall  be  a  bar  as  to  offences  committed  before  such 
recovery.  If  a  multiplicity  of  offences  can  be  sued  for  in  one 
suit,  the  protection  afforded  by  this  section  of  the  act  against 
prosecutions  for  offences,  committed  before  the  recovery,  is  en- 
tirely defeated  and  frustrated. 

The  court  is,  accordingly,  of  opinion,  that  at  all  events,  but  one 
penalty  is  recoverable  in  one  action,  and  that  recovery  bars  all  an- 
tecedent offences.  Upon  the  plaintiff's  remitting  fifty  dollars 
of  his  verdict,  lie  may  enter  up  his  judgment  for  the  remain- 
ing twenty-live  dollars.  Judgment  accordingly. 

"  No  person  shall  have  a  license  to  sell  any  strong  or  spirituous 
liquors,  to  be  drank  in  any  store  or  house  where  merchant's 
goods  are  sold,  unless,  such  person  shall  also  take  at  the  same 
time  a  license  to  keep  an  inn  or  tavern,  and  it  shall  appear  neces- 
sary to  the  commissioners,  that  an  inn  or  tavern  ought  to  be  kept 
nt  such  place,  for  the  actual  benefit  and  accommodation  of  tra- 
vellers, as  in  other  cases  ;  nor  unless  such  person  shall  actually 
keep  the  necessary  spare  bedding,  stabling,  hay,  and  provender 
for  horse?,  except  in  the  city  of  New- York,  and  shall  conform  in 
all  things  to  the  rules  prescribed  by  this  act,  relative  to  the  keep- 
ers of  inns  and  taverns  ;  and  no  strong  liquors  shall  be  sold  by 
&uch  person,  on  any  pretence,  to  be  drank  in  the  same  room 
v.'here  such  merchant's  goods  are  sold."  s.  10. 

V.  Selling  to  servants,  fyc. 

"  If  any  inn-holder  or  tavern-keeper  shall  sell   any  strong  CM 

spirituous  liquors  to  any  apprentice,  servant,  or  slave,  knowing  or 

having  reason  to  suspect  or  believe  him  or  her  to  be  such,  without 

!i.<<ent  of  his  or  her    master  or  mistress,  such  inn-holtier  or 

hall   forfeit  and    lose  every   debt  which   such  ap- 

prentice,  servant,  or  slave    shall  contract  for  any  such  liquor,  and 

also  for  every  such  offence    forfeit  the  sum  of  five   dollar?,  to  be 

recovered,  with  costs  of  suit,  by  the  master  or  mistress  of  such 

apprentice,  servant,  or  slave  ;  And  further,  the  license  of  every 


INNS  AND  TAVERNS. 

such  inn-holder  or  tavern-keeper  shall  be,  and  hereby  is  declared 
void,  from  the  time  of  such  ronviclicm  ;  and  such  inn-holder  or 
tavern-keeper  shall  he,  and  h  hereby  declared  lo  be  incapable  of 
receiving  any  further  or  oilier  license  for  holding  any  public  inn 
or  tavern  fur  the  space  of  three  years  from  the  lime  of  such 
conviction."  s.  II. 

"  If  any  inn-holder,  or  tavern-keeper,  or  any  other  person,  shall 
take  or  receive,  directly  or  indirectly,  from  any  such  apprentice, 
servant,  or  slave,  any  clothing,  or  any  other  goody,  chattel:;,  wares- 
or  merchandise,  in  payment  for  any  such  strong  or  spirituous 
liquors,  or  in  pawn  or  pledge  to  secure  any  such  payment,  and 
thereof  be  convicted  by  the  oath  of  any  one  credible  witness, 
toich  person  so  offending,  besides  the  payment  of  the  penalty  and 
forfeiture  of  the  debt  as  aforesaid,  shall,  within  three  days  after 
such  conviction,  restore  to  the  master  or  mistress  of  such  ap- 
prentice, servant,  or  slave,  all  such  clothing,  or  other  property, 
•which  such  person  shall  have  so  taken  or  received  from  any  such 
apprentice,  servant,  or  slave,  or  shall  forfeit  and  pay  unto  the 
master  or  mistress  of  such  apprentice,  servant,  or  slave,  double 
the  value  of  the  same,  to  be  recovered  by  such  master  or  mis- 
tress, his  or  her  executors  or  administrators,  with  costs  of  suit,  in 
any  court  having  cognizance  thereof."  s.  12. 

VI.  Selling  on  credit. 

"  If  any  inn-holder  or  tavern-keeper  shall  trust  any  person, 
other  than  travellers,  above  the  sum  of  one  dollar  and  twenty- 
live  cents  for  any  sort  of  strong  or  spirituous  liquors,  or  other 
tavern  expenses,  he  shall  lose  every  such  debt,  and  be  incapable 
of  suing  for  the  same,  or  any  part  thereof ;  and  if  any  inn-holder 
or  tavern-keeper  shall  sue  therefor,  the  person  sued  may  plead 
ibis  act  in  bar,  or  give  the  same  in  evidence,  under  the  general 
issue  ;  and  if  the  plaintiff  in  «uch  suit  shall  become  nonsuit,  or  a 
verdict  or  judgment  shall  be  given  for  the  defendant,  every  such 
plaintiff  shall  pay  double  costs."  s.  13. 

"  If  any  inn-holder  or  tavern-keeper  shall  take  from  any  person 
1  rusted  as  aforesaid,  any  note,  or  other  security  in  writing,  for 
any  sum  above  one  dollar  and  twenty-five  cents,  for  any  strong 
or  spirituous  liquors  sold  or  drank  at  his  house  as  aforesaid,  under 
pretence  by  which  to  evade  this  act,  every  such  note,  or  other 
writing,  shall  be  void;  Jlnd  further,  every  person  who  shall  be 
convicted  of  an  offence  against  this  clause  of  this  act,  shall  forfeit 
double  the  sum  mentioned  in, and  intended  to  be  secured  by  such 
note,  or  other  writing,  to  be  recovered  by  action  of  debt,  or  by 
information,  with  costs  of  suit,  in  any  court  having  cognizance 
thereof;  Provided,  however,  that  nothing  herein  contained  shall  be 
construed  to  debar  any  inn-holder,  or  tavern-keeper,  from  taking 
or  recovering  any  sum  of  money  due  to  him,  from  any  person 
who  may  be  a  lodger  in  his  house,  or  from  travellers  not  residing 
in  such  city  or  town."  s.  1-i. 


INNS  AND  TAVERN  207 

1  de  plaintiff  in  the  court  below,  declared  that  the  defendant  Ehel  v.SmUt>, 
was  indebted  to  him,  and  delirered  to  the  justice  a  book  account,  i^'"";. 
.'he  "-renter  part  of  which  was  for  tavern  exp«MMi  The  defendant 
pleaded  the  thirteenlh  section  of  tlie  act:  and  the  jury  found 
fur  tlie  plaintiff.  Tlie  cause  was  removed  by  certiurari  into  the 
supreme  court.  THOMPSON,  J.  delivered  the  opinion  of  the  court. 
The  account  delivered  must  necessarily  be  taken  as  the  plaintiff's 
declaration,  otherwise  he  sets  forth  no  specific  demand  to  whicii 
the  defendant  could  answer.  Although  a  plaintiff  in  a  justice's 
court  ought  not  to  be  held  to  technical  niceties  in  declaring,  yet 
he  ought  to  make  it  appear  that  he  has  a  sufficient  foundation  foi: 
bringing  his  action,  and  not  by  his  own  showing  disclose  that  his 
demand  was  illegal.  By  the  general  terms,  "tavern  expenses." 
the  court  must  necessarily  intend  such  charges  as  are  prohibited 
in  the  section  of  the  act  pleaded  in  bar.  Had  he  declared  gene- 
rally on  a  common  book  account,  it  might  have  been  incumbent  on 
tlie  defendant  to  show  that  the  account  was  for  tavern  expenses,  and 
the  court  here  might  intend  in  favour  of  the  judgment,  that  he  failed, 
in  doing  that.  But  when  the  declaration  states  the  demand  to  b«; 
tavern  expense?^  it  lays  with  the  plaintiff  to  disclose  that  the  de- 
fendant was  "a  traveller  or  lodger"  iu  his  house,  in  order  to  briii£ 
bis  account  within  the  exceptions  in  the  act,  and  give  him  a  right: 
of  recovery.  Not  having  done  this,  his  demand,  from  his  own 
showing,  was  illegal,  and  the  judgment  iu  the  court  below  cannot 
be  maintained. 

VII.  Prosecutions  under  the  act. 

•'  F.vory  penalty  and  forfeiture  imposed  by  this  act  may  be  re  • 
f/ivered,  with  costs  of  suit,  in  any  court  having  cognisance  there- 
of, by  any  person  who  will  prosecute  for  the  same  to  effect,  unless- 
this  act  has  otherwise  provided,  the  one  moiety  thereof,  not  !>\ 
this  act  otherwise  appropriated,  shall,  when  recovered,  be  paid  to 
the  overseers  of  the  poor  of  the  city  or  town  in  which  such  of- 
fence shall  happen,  for  the  use  of  the  poor  thereof,  and  tSie  other 
moiety  to  the  person  who  shall  sue  for  the  same."  3.  16. 

The  action  given  by  this  section  is  to  be  brought  in  the  name   B!r.«Teii  \. 
of  the  plaintiff  and  of  the  overseers  of  the  poor,  and  not  in  th«    ;.  ?v^v 
name  of  the  plaintiff  alone.  Kel: 

"  All  offences  committed  against  any  of  the  provisions  of  this 
act  shall  be  deemed  and  considered  as  misdemeanours,  punisha- 
ble by  fine  and  imprisonment,  or  either  of  them,  at  the  discretion 
of  the  court  before  which  any  conviction  may  be  had."  s.  17. 

"  Whenever  any  suit  shall  be  commenced,  and  a  recovery  had 
for  a  penalty  incurred  for  selling  strong  or  spirituous  liquors  with- 
out license,  such  recover}'  shall  be  a  bar  to  ;.ll  prosecutions  Tor  of- 
-  of  the  like  nature  committed  before  such  recovery."    s.  IS. 

An  action  on    the  tenth  section  of  this  art  was  commenced  on    .'i'™ '.'',' 
the  17th  of  August,  anil  the  defendant  n!  >»<•' 


208  LV\S  ANDTAVI-;R\ 

evidence  a  conviction  in  a  suit  commeix.  <•<!  on  the  2.3(1  ol  Aiijuf,f 
A  verdict  was  given  Air  the  defendant,  and  proceedings  removed 
into  the  supreme  court,  b'y  ccrtiorari,  and  the  judgment  revt 
on  two  grounds:  !.  The  evidence  of  a  former  conviction  was  in- 
sufficient. In  the  first  place,  the  conviction  ought  to  have  been 
drawn  up  in  the  form  prescribed  by  the  twenty-five  dollar  act  of 
lsO£.  The  act  prescribes  a  specific  form  of  conviction,  to  bu 
drawn  up  by  the  magistrate,  in  this  particular  case  of  offences 
against  the  tavern  act;  and  then  it  adds,  that,  "  every  such  con- 
viction may  be  pleaded  in  bar  to  any  other  prosecution  for  the 
same  oflc.ice."  When  the  law  prescribes  a  particular  form  in 
such  cases,  it  must  be  pursued,  otherwise  it  does  not  afford  the 
requisite  legal  evidence  of  a  conviction. 

2.  But  if  the  conviction  had  been  eertified  in  due  form,  it  would 
not  have  availed,  because  it  was  founded  on  a  suit  commenced 
subsequent  to  that  of  the  plaintiff.  The  person  who  first  com- 
mences a  qui  tarn,  or  popular  action,  attaches  a  right  in  himself, 
which  no  other  common  informer,  by  a  subsequent  suit,  can  de- 
vest  ;  and  he  may  demur  to  a  plea  of  recovery  in  such  subse- 
quent suit.  Though  the  statute  says,  that  a  recovery  for  a  penalty 
incurred  by  selling  spirituous  liquors  without  license,  shall  be  a  bar 
to  all  prosecutions  for  offonces  committed  before  such  recovery  ; 
yet  this  must  be  understood  of  a  recovery  in  a  suit  which  had 
been  first  commenced.  The  statute  is  not  to  be  construed  so  as 
to  work  a  destruction  of  a  ri^ht  previously  attached. 

The  following  is  the  form  of  conviction,  which  may  be  pleaded 
in  bar  to  any  other  prosecution  for  the  same  offence. 

i  n.  K  330.         City  of  New-York',  (or  Westchester  county,  or   other  city  or 
county,  as  the  case  may  be,)  to  wit:  Be  it  remembered,  that  on 

the day  of  ,  in  the  year  of  our   Lord  one  thousand 

,  A.  B.  of  the  city  of  New-York,  (or  of  Bedford,  in  the  coun- 
ty of  Westchester,  or  other  city,  or  town,  or  county,  as  t! 
may  require, }  merchant,  (or  farmer,  or  other  addition,  as  th- 
may  require.)  (and  adding,)  being  an  inn-holder,  or  tavern-keeper, 
(if  the   case    be   so,)  is  this  day  convicted   before  C.  D.  mayor, 
(or    recorder,    or   one   of  the    aldermen,   as   the   case    may   rt- 
quire.)  of  the  said  city,  (or  one  of  the  justices  of  the  peace  of  the 

:  aid  county,  as  the  case  may  require,)  of  having  on  the day  of 

last,  (or   instant,)  at ,  in  the  said  city,  (or  county,)  sold 

\i\  retail,  one  quart  (or  other  quantity)  of  rum,  (or  other  spirituous 
liquors,)  without  having  such  permit,  or  to  be  drank  in  his  (or  her) 
house,  or  out-house,  yard,  or  garden,  without  having  entered  into 
such  recognisance  as  is  mentioned  in  the  act,  entitled,  "  an  act  to 
i  ay  a  duty  on  strong  liquors,  and  for  regulating  inns  and  taverns,"  (or) 
of  not  having  in  his  (or  her)  house  two  spare  beds  for  guests,  with 
good  and  sufficient  sheeting  ;tnd  covering  for  such  beds  respective- 
ly, for  the  accommodation  of  travellers  ;  (or)  of  not  having  good 
and  sufficient  stabling  and  provender  of  hay  and  grain,  if  in  winter, 
and  if  in  summer,  of  hay  or  pasturage  for  four  horses,  or  other 
cattle,  more  than  his  or  their  own  stock,  for  the  accommodation 


JURY.  209 

of  travellers,  according  to  the  form  of  the  act,  entitled,  "an  act  to 
lay  a  duty  on  strong  liquors,  and  for  regulating  inns  and  taverns," 

or  of  having,  on  the day  of last,  (or  instant,)  at ,  in 

;!i«  said  city,  (or  county)  sold  one  gill  (or  other  quantity)  of  rum 

(or  other  strong  liquor)  to  ,  an  apprentice  (or  servant  or 

slave)  of ,  knowing  or  having  reason  to  suspect  or  believe 

him  or  her  to  be  such,  without  the  consent  of  his  or  her  master, 
(or  mistress,)  against  the  force  of  the  act,  entitled  "an  act  to  lay 
a  duty  on  strong  liquors,  and  for  regulating  inns  and  taverns,"  > 
or  of  having,  for  the  space  of  one  month,  (or  two  or  more  months,) 
neglected  to  put  up  and  keep  such  sign  up  as  is  required  by  the 
act,  entitled,  "  an  act  to  lay  a  duty  on  strong  liquors,  and  for  regu- 
lating inns  and  taverns."  Given  under  my  hand,  the  day  and 
Tear  first  abov^  written.  Sess.  31.  c.  20-i.  s.  S. 


JURY. 

I.  Of  the  several  kinds  of  juries,  the  qualifications  of  jurors,  and 

how  to  bt  summoned  and  returned. 
IF.  Challenges. 

III.  Demeanour  of  the  jury  in  making  up  their  verdict,  and  how  it 

is  to  be  given. 

IV.  Corruption  in  jurors. 

I.   Of  the  several  kinds  of  juries,  the  qualifications  of  jurors,  and 
hoiv  to  be  summoned  and  returned. 

Juries  are  distinguished  into  grand  and  petit  juries  ;  the  grand  3  Bac.  Abr. 
jury  may  consist  of  thirteen,  or  any  greater  number  not  exceed-  "eurr.  icss. 
ing  twenty-three  ;  for  these   being  the   grand  inquisitors  of  the   The  People 
county,  every    indictment  and  presentment  by  them  must  be   2Caines' 
ibund  by  twelve   at  least,  but  it  is  not  necessary  that  all  above  ^Ha'wkf'p.c 
that  number  should  concur  in  such  presentment  or  indictment,  c.  as.  ».  is. ' 
And  if  it  appear  by  the  caption   of  an  indictment,  or  otherwise, 
that  it  was  found  by  less  than  twelve,  the  proceedings  upon  it  will 
be  erroneous. 

The  grand  jurors  must  every  one  be  of  the  same  county  where  2  Hawk. P.  c, 
the  crime  was  committed,  and  returned  by  the  sheriff  or  other  3  Bac.'AbV 
proper  officer,  without  the  nomination  of  any  other  person  what-  72i> 
soever ;  and  ought  also  to  be  a  freeman,  and  a  lawful  liege  sub- 
ject ;  and,  consequently,   neither  under  an  attainder  of  any  trea- 
son or  felony,  nor  an  alien,  nor  outlawed,  whether  ibr  a  crimi- 
nal matter,  or  as  some  say,  in  a  personal  action.     Also  it  seems 
that  any  one  who   is  under  a  prosecution   for  any  crime  what- 
soever, may,  by  the  common  law,  before  he  is  indicted,  challenge 
*ny  of  tho  persons  returned  on  the  grand   i».rv,  us  Vinjr 

r  T: 


2tD  JURI-. 

C',1  for  felony,  or  returned  at  the  instance  of  a  prosecutor,  or  nut 
returned  by  the  proper  officer,  &ic. 

*Bac.  Abr.  The  petit  jury  cannot  consist  of  more  or  less  than  twelve  per- 
sons, excepting  in  a  justice's  court,  in  which  six  persons  are  a 
sufficient  jury. 

"  Every  venire  facias  for  the  trial  of  any  issue  in  any  action, 
civil  <»•  criminal,  in  any  court  of  record  within  this  state,  shall  bo 
awarded  of  the  body  of  the  proper  county  where  such  issue  h 
triable,  except  in  cases  whore  foreign  juries  shall  be  deemed 
necessary,  in  which  case  the  venire  facias  shall  be  awarded  of  the 
body  of  the  county  from  which  such  foreign  jury*  shall  be  direct- 
ed to  come."  Sess.  36.  c.  4.  s.  7.  1  R.  L.  326. 

"  It  shall  not  be  lawful  for  more  than  thirty-six,  nor  less  than 
twenty-four  jurors,  to  be  summoned  for  the  trial  of  issues  in  lh<» 
supreme  court,  or  in  any  circuit  court,  sittings,  court  of  oyerand 
termincr,  and  general  gaol  delivery,  Mayor's  court,  court  of  com- 
mon pleas,  or  general  sessions  of  the  peace,  to  be  held  in  any  city  or 
county  of  this  state,  unless  otherwise  directed  by  one  of  the  judges 
of  such  court;  and  all  jurors  who  shall  be  returned  upon  trials  of 
issues  in  the  said  courts,  other  than  strangers  upon  trials  per  medic- 
tatem  linguae,  shall  every  of  themf  be  above  the  age  of  twenty - 
one,  and  under  the  age  of  sixty  years,  and  shall  each  of  them 
have  in  such  county  in  his  own  name  or  right,  or  in  trust  for  him, 
or  in  his  wife's  right  in  the  same  county,  a  freehold  in  land.s, 
messuages,  or  tenements,  or  of  rents  in  fee  or  for  life,  of  the  value 
of  one  hundred  and  fifty  dollars,'  free  of  all  reprises,  debts,  de- 
mands, or  incumbrances  whatsoever,  and  in  the  cities  of  New- 
York,  Albany,  or  Hudson,  a  freehold  of  the  value  aforesaid,  or  a 
personal  estate  of  the  like  value,  free  from  all  reprises,  debts,  de- 
mands, or  incumbrances  whatsoever.  And  if  any  man  not  so 
qualified,  shall  be  returned  upon  any  such  jury,  or  tales  in  default 
of  such  jurors,  it  shall  be  good  cause  of  challenge  to  the  juror  not 
so  qualified  ;  and  such  person  so  returned  shall  be  discharged 
upon  such  challenge,  or  his  o\vn  allegation  and  oath  thereof;  and 
to  the  end  that  jurors  so  qualified  may  be  always  returned,  the 
Avrits  of  venire  facias  juratores,  which  shall  at  any  time  hereafter 
l.'o.  awarded  for  the  impanelling  of  juries  within  any  of  the  coun- 
ties of  this  state,  except  the  county  of  New-York,  shall  have  in 
the  body  thereof  the  words  following,  that  is  to  say  :  Twelve  free 
and  laicful  men  of  your  couniy,  each  of  whom  shall  have  in  7u.v  own 


*  A  foreign  jury,  is  a  jury  summoned  out  of  a  county  different  from 
that  in  which  the  isuuc  is  tried  :  it  is  evident  that  the  power  of  granting 
n  i'fircign  j'iry  can  reside  only  in  courts  of  general  jurisdiction,  as  the 
supreme  court. 

r  The  qualifications  of  jurors  on  the  trial  of  the  traverse  of  an  indict- 
ment for  a  forcible  entry,  as  well  ;is  the  qualification  s  of  the  indictors,  are 
<he  same  as  those  of  jurors  for  the  trial  of  issues  in  the  supreme  court 
FORCIBLE  EJVTUY  ANDDETAIKER,  II. 


JURY.  211 

name  or  right,  or  in  trust  for  him,  or  in  his  ivif^s  right,  a  frecliold 
in  land,  messuages  or  tenements,  or  of  rents  in  fee  or  for  life,  of 
the  value  of  one  hundred  and  fifty  dollars,  free  from  all  reprises, 
d^bts,  demands  or  incutulrances  ivhatsoever"  s.  9. 

'•  If  a  sufficient  number  of  jurors  do  not  appear  at  any  of  the 
courts  mentioned  in  this  act,  (sec  sect.  9  supra]  or  after  appear- 
ance of  a  full  jury,  by  challenge  the  jury  is  like  to  remain  u-itaken 
lor  default  of  jurors,  such  court  is  hereby  authorized,  upon  mo- 
lion  made  in  behalf  of  the  people  of  this  state,  or  of  any  party, 
to  command  the  sheriff  to  name  and  appoint,  as.  often  as  shall  be 
requisite,  so  many  of  such  other  persons,  of  the  said  county,  quali- 
fied to  serve  on  such  juries  according  to  the  intent  of  this  act,  and 
to  add  and  annex  their  names  to  the  former  panel,  as  shall  make 
up  a  full  jury  of  twelve  men  for  the  trial  of  every  such  issue  ; 
and  the  said  courts  shall  proceed  to  the  trial  of  every  such  issue 
with  those  jurors  that  were  before  impanelled  and  returned,  and 
\vith  those  newly  added  and  annexed  to  the  said  former  panel  by 
\  irtue  of  this  act,  in  such  wise  as  they  might  or  ought  to  have 
done,  as  if  all  the  said  jurors  had  been  returned  upon  the  lirst 
panel."  s.  Ik 

The  jurors  thus  annexed  to  the  panel  are  called  a  tales  or  tales   3  Eac.  Ab»» 
dc  circumstantibus  ;  i.  e.  so  many  persons  selected   from  the  by- 
standers ;  and  at  common   law,   in   case  of  a  defect  of  jurors,  by 
their  not  appearing  or  being  challenged,  writs  might  be  awarded 
Lo  summon  so  many  as  the  jury  was  deficient. 

The  power  of  awarding  a  tales  is  incident  to  a  court  of  justice,   Zedy  T.  Yan- 
and  essential  to  its  proceedings  ;  and  in  a  justice's  court,  in  case    2Joims. 
of  a  default  of  the  jurors  summoned  on  the  venire,  the  justice   l!ci>' 3W' 
may  award  a  tales. 

"  Every  grand  or  petit  juror,  constable,  or  other  officer,  whose 
duty  it  shall  be  to  attend  any  of  the  courts  of  record  in  this  state, 
and  who  shall  refuse  or  neglect  to  attend  accordingly,  shall  be 
liable  to  be  fined  by  such  court  in  a  sum  not  exce-ding  twenty- 
ft\e  dollars  ;  and  in  every  case  where  such  fine  shall  be  imposed 
by  any  of  the  said  courts,  such  court  shall  immediately  cause 
public  proclamation  of  such  fine  to  be  made  ;  and  if  such  delin- 
quent juror,  constable,  or  other  officer,  who  shall  be  fined  as  afore- 
said, shall  not,  during  the  term  or  sittings  of  the  said  court  in  which 
such  fine  shall  be  imposed,  show  a  satisfactory  reason  or  excuse 
to  the  said  court  for  his  default  or  non-attendance,  then  such  fine 
so  imposed  shall  be  estreated  into  the  court  of  exchequer,  in 
order  that  the  same  may  be  levied  and  paid  into  the  treasury  for 
the  use  of  the  people  of  this  state."  Sess.  36.  c.  4.  s.  18.  1  II. 
L.  330. 

"  In  all  cases  where  the  sheriff  or  other  officer  dial!  not  bo 
able  to  summon  personally  any  person  directed  to  be  summoned 
as  a  juror,  by  ruison  of  absence  from  home,  a  summons  in  writ- 
ing, left  at  tli  usual  place  of  abode  of  such  person,  within  the 
lime  prescribed  for  that  purpose,  with  some  perse;.'  of  suitable  ag«? 


212 

and  discretion,  shall  be  deemed  a  sufficient  notification  ; 
all  cases  of  a  summons  of  a  juror  in  writing  as  aforesaid,  the  court 
shall  suspend  the  imposing  a  fine  for  his  non-attendance  until  the 
next  term  or  session  of  such  court,  to  the  end  that  such  juror  may 
have  time  to  make,  it  appear  to  such  court,  that  he  was  absent 
from  home  at  the  time  such  summons  was  left  at  his  place  of 
abode,  and  did  not  return  in  season  to  attend  at  the  said  court : 
and  to  the  end  that  such  defaulting  jurors  may  have  such  notice,, 
the  clerks  of  the  several  counties  shall  forthwith  transmit  to  the 
sheriff  of  the  county  a  list  of  the  names  of  such  defaulting  jurors,, 
who  shall,  without  delay,  notify  such  jurors  of  their  respective  de- 
faults  and  liability  to  a  fine  on  that  account."  s.  19. 

"  All  manner  of  juries  and  inquests  hereafter  to  he  taken  be- 
tween aliens  and  citizens  of  any  of  the  United  States  of  America. 
In  any  of  the  said  courts,  (fide  sect  9.  supra)  and  whether  thi? 
state  be  party,  or  interested  or  not,  except  in  cases  of  treason, 
the  one  half  of  the  jury  or  inquest  shall  be  citizens  of  this  state, 
and  qualified  by  this  act  to  serve  on  ?uch  juries  or  inquests,  and 
the  other  half  aliens,  if  so  many  aliens  be  in  the  city  or  county 
where  sueh  jury  or  inquest  is  to  be  taken,  and  who  shall  be  indif- 
ferent between  the  parties:  and  if  there  be  not  so  many  aliens 
or  strangers,  then  there  shall  he  put  on  such  juries  or  inquests  as 
many  aliens  and  strangers  as  shall  bo  found  in  the  same  city  or 
county,  who  shall  be  indifferc  nt  as  aforesaid,  and  the  remainder 
of  the  citizens  of  this  state,  qualified  by  this  act  to  serve  on  such 
juries  or  inquests."  s.  24. 

2Hi»:l;.r.c.  There  need  not  be  any  aliens  on  the  grand  jury,  who  find  an 
c^43.  s.  16  indictment  against  an  alien  ;  neither  is  it  necessary  that  the  petit 
s  Rac  Abr.  jury,  in  actions  between  aliens,  should  be  half  aliens.  Process  de 
36jjiack.  medietxt:  linguce,  cannot  be  prayed  after  the  return  of  a  common 
Com.  360.  venire. 

"  Any  non-commissioned  officer  or  private  of  any  company  of 
grenadiers,  light  infantry,  artillery,  and  riflemen,  of  the  militia  of 
this  state,  and  the  commissioned  officers  of  artillery  in  the  city 
of  New-York,  who  shall  produce  a  certificate,  dated  within  three 
months  of  the  then  present  time,  signed  by  the  commanding  offi- 
cer of  such  company,  or  regiment,  that  he  belongs  to  such  com- 
pany, shall  not  be  compelled  to  serve  on  any  grand  or  petit  jury 
within  this  state,  nor  shall  the  firemen,  belonging  to  any  compa- 
ny of  firemen,  now  or  hereafter  to  be  established  by  law,  in  any 
city,  town,  or  village  within  this  state;  or  the  inspectors  > 
state  prison,  or  the  wardens  of  the  port  of  New-York,  or  tilt* 
commissioners  of  the  health  offic.  ,  be  compelled  to  serve  on  any 
grand  or  petit  jury,  so  long  as  they  continue  to  be  firemen,  inspec- 
tors, \cardens.  or  commissioners  as  aforesaid:  and  also  the  agent-', 
soperintendants,  artificers,  and  -vorkmen  of  every  kind,  employed 
in  and  abrnt  the  Albnny  Glass  Factory,  belonging  to  the  Hamilton 
". !  iss  M".r,'.i':u;turing  Society,  shall  be  exempted  from  serving  as  in- 
juring the  time  they  shall  be  so  employed.  And  further,  no 


JURY.  21S 

r,  or  reputed  quaker,  shall  be  compelled  to  serve  as  a  juror 
upon  the  trial  of  any  indictment  for  treason  or  murder."  s.  28. 

The  venire   or  jury  process  is  directed  to  the  sheriff  of  the   *  TWISTS. 
county;  but  where  the  sheriff  is  a  party,  or  interested  in  the 
cause,  it  is  directed  to  the  coronor,  and  if  the  coroner  as  well 
as  the  sheriff  b«;  interested,  the  venire  is  awarded  to  two  persons 
appointed  by  the  court,  called  elisors. 

II.  Challenges. 

Challenges  are  of  two  sorts,  first,  to  the  array,  and  secondly  to  3  Black, 
the.  polls.  Challenges  to  the  array,  are  at  once  an  exception  to 
the  whole  panel,  in  which  the  jury  are  arrayed,  or  set  in  order  by 
the  sheriff,  in  his  return  ;  and  they  may  he  made  upon  account 
of  partiality,  or  some  default  in  the  sheriff,  or  his  under  officer, 
who  arrayed  the  panel.  And  generally  speaking,  the  same  rea- 
sons that  before  awarding  the  venire,  were  sufficient  to  have  di- 
rected it  to  the  coroners  or  elisors,  will  be  also  sufficient  to  quash 
the  array,  when  made  by  an  officer  of  whose  partiality  there  is 
any  good  ground  of  suspicion. 

This  kind  of  challenge  is  two  fold  ;  either  a  principal  cause  of  Co^M,'^. 
challenge,  or  to  the  favour.    A  principal  challenge  is  grounded  on   743. 
such  a  manifest  presumption  of  partiality,  that  if  it  be  found  true, 
it  unquestionably  sets  aside  the  array ;  but  a  challenge  to  the  fa- 
vour leaves  it  to  the  discretion  of  the  triors. 

There  are  many  principal  causes  of  challenge  to  the  array  ;  as  Co.'LUt.  ine 
if  the  officer  return  any  juror  at  the  nomination  of  the  party,  or   743. 
that  he  may  be  more  favourable  to  one  party  than  the  other,  or  if 
ho  be.  liable  to  the  distress  of  either  party,  mediately  or  immedi- 
ately, or  if  he  have  part  of  the  land  depending  on  the  same  title  ; 
or  if  either  of  them  have  an  action  of  debt  against  him  ;  or  if 
an  action  of  battery  or  such  like,  which  imply  malice,  be  depend- 
ing between  them. 

It  is  a  principal  cause  of  challenge  if  the  sheriff,  who  served  Woods  v. 
the  venire,  were  a  party  in  the  cause  ;  or  that  he  was  attorney  or  f  j^n"!  Rep. 
counsellor  for  either  party  ;  so,  if  in  a  justice's  court,  the  jury   143- 
were  summoned  by  a  constable,  who  acts  as  advocate  for  the   weaver, 
party,  it  is  a  cause  of  challenge  to  the  array ;  but  if  the   other  J^p**™". 
party  had  expressly  assented  to  their  being  summoned  by  such   Cowp.  112. 
constable,    he   cannot  afterwards    challenge   the    array   on   that 
ground. 

Consanguinity  between  the  sheriff  and  either  of  the  parties,  or  3  ESC.  AM-. 
affinity  by  marriage  of  either  party  himself  with  the  cousin  of  the 
sheriff,  or  e  converse,  are  principal  causes  of  challenge  to  the  array  ; 
but  if  the  marriage  be  between  the  son  of  the  one,  and  the  daughter 
of  the  other,  it  is  a  cause  of  challenge  to  the  favour  only.  And 
if  either  of  the  parties  be  subject  to  the  distress  of  the  sheriff,  or 
if  the  sheriff  have  an  action  of  debt  against  either  of  the  partie;-, 
these  are  causes  of  challenge  to  the  favour  only :  far  the  sheriff 


JURY. 

thereby  is  not  under  the  party's  influence  ;  but  the  party  under  Uis. 
^  ^ie  c'ia"enoe  to  tne  array  be  found  against  the  party,  he 
shall  have  his  challenge  to  the  polls;  but  neither  party  shall  have 
a  challenge  to  the  polls,  which  they  might  have  had  to  the  array. 

s  Black.  Challenges  to  the   polls,  in  capita,  are  exceptions  to  particular 

Coin.  361.        .  , .     .    .T  .    . 

jurors;  and  seems  to  answer  the  recusatis  judicis  in  the  civil  and 

canon  laws,  by  the  constitutions  of  which,  a  judge  might  be. 
refused  upon  any  suspicion  of  partiality.  By  the  laws  of  Eng- 
land also,  in  the  times  of  Bracton  aud  Fleta,  a  judge  might  be 
refused  for  good  cause  ;  but  now,  the  law  is  otherwise,  and 
it  is  held  that  judges  and  justices  cannot  be  challenged.  For 
the  Jaw  will  not  suppose  a  possibility  of  bias  or  favour  in  a  judge, 
who  is  already  sworn  to  administer  impartial  justice,  and  whose; 
authority  greatly  depends  upon  that  presumption  and  idea.  And 
should  the  fact  at  any  time  prove  flagrantly  such,  as  the  delicacy 
of  the  law  will  not  presume  before  hand,  there  is  no  doubt  but 
such  misbehaviour  would  draw  down  a  heavy  censure  from  those 
to  whom  the  judge  is  accountable  for  his  conduct. 

Co.  Litt.  Challenges  to   the   poll  may  be  reduced  to  four  heads  ;  first, 

propter  honoris  respcctum,  for  respect  of  honour ;  secondly, 
propter  defecium,  for  want  or  default :  thirdly,  propter  affectum, 
for  affection  or  partiality  :  fourthly,  propter  delictum,  for  crime. 

1.  Propter  honoris  respeclum  :  as  where  a  lord  of  parliament  is 
impanelled  on  the  jury:  a  case  which,  it  is  unnecessary  to  ob- 
serve, can  only  occur  in  England,  and  never  in  this  country. 
sBae.Abr.  It  seems  to  be  agreed  that  all  persons  whose  atteodance  is  re- 
quired in  the  superior  courts  of  justice,  such  as  counsellors, 
attornies,  and  other  officers  of  the  courts,  are  so  far  privileged 
as  not  to  be  summoned  on  juries. 

3  Black.  Com.       n    Propter  defedum,  as  if  a  juryman  be  an  alien  born,  this  is  a 
156  b.GUb.    defect  of  birth  ;  if  he  bo  a  slave  or  bondman,  this  is  a  defect  of 
c:.  p.9s.         liberty,  and  he  cannot  be  a  liber  tt  legalis  homo,  a  free   and  law- 
ful man.     Under  the  word  homo  also,  though  a  name  common  to 
both  sexes,  the  female,  however,  is  excluded,  propter  defedum 
scxus.      AH   incapable  persons,  as  infants,  ideots,  and  people   of 
7iora  sane   memory,  are   likewise  excluded.      But  the   principal 
deficiency  is  defect  of  estate,  sufficient  to  qualify  him  to  be  a  juror. 
As  to  what  are  the  qualifications  of  estate,  vide  ante,  I. 

iBtect.  3.  Propter  affedum:  jurors  ought  to  be  omni  exccptione  majores, 

Liu!' is:.  a.°"  and  for  their  bias  or  partiality,  there  may  be  either  a  principal 
challenge,  or  a  challenge  to  the  favour.  If  the  juror  be  of  kin  to 
either  party  within  the  ninth  degree,  it  is  a  principal  cause  of 
challenge.  And  if  the  plaintiff  challenge  a  juror  for  kindred  to 
the  defendant,  it  is  no  counterplea  to  say  that  he  is  of  kindred 
also  to  the  plaintiff,  though  he  be  in  a  nearer  degree,  for  the  words 
of  the  venire  facias  forbid  the  juror  to  be  of  kindred  to  either  party. 
So,  if  in  an  action  by  a  corporation,  the  juror  be  of  kin  to  any  mem- 
ber of  it;  but  a  bastard  cannot  be  of  kin  to  any  person,  and  therefore 


JURY. 


it  13  not  a  priiicip.il  cause  of  challenge.  Affinity,  or  alliance  by 
marriage,  is  i\  priur.ipul  challenge,  and  equivalent  to  consanguini- 
ty when  it  is  between  either  of  the  parties,  as  it"  the  plaintiff  or 
defendant  marry  the  daughter  or  cousin  of  the  juror,  or  the 
juror  marry  the  daughter  or  cousin  of  the  plaintiff  or  defendant, 
anil  the  same  continues,  Or  issue  be  had  which  is  still  living. 

If  the  juror  have  before  given  a  verdict  for  the  same  cause, 
although  the  judgment  may  have  been  reversed,  or  have  been 
arrested,  it  is  a  principal  Cause  of  challenge.  So  if  he  have 
given  a  former  verdict  upon  the  same  title  or  matter,  though 
between  other  persons.  So  if  he  were  an  arbitrator  chosen  by 
either  party,  and  had  been  informed  and  treated  of  the  matter, 
it  is  a  principal  challenge.  Otherwise,  if  he  were  never  informed 
or  treated  thereof  ;  and  otherwise,  if  he  were  indifferently  chosen 
by  the  parties,  though  he  treated  thereof  ;  so  it  is  a  sufficient 
challenge  that  the  juror  was  on  the  grand  jury  which  found  the 
indictment  in  the  cause.  Actions  brought  either  by  the  jtiror 
against  either  of  the  parties,  or  by  either  of  the  parties  against 
him,  which  imply  malice  or  displeasure,  are  causes  of  principal 
challenge.  Other  actions  which  do  not  imply  malice  or  displea- 
sure are  but  to  the  favour. 

If  the  juror  be  the  party's  master,  servant,  counsellor,  steward, 
or  attorney,  or  of  the  same  society  or  corporation  with  him, 
these  are  principal  causes  of  challenge  ;  so  if  he  has  taken  money 
for  his  verdict,  or  if  after  being  returned,  he  has  ate  and  drank  at 
the  charge  of  either  party. 

The  interest  of  a  juror  in  a  cause  is  a  principal  ground  of  chal- 
lenge ;  any,  even  the  smallest  degree  of  interest  in  the  question 
depending,  is  a  decisive  objection  to  him,  for  the  lav.-  considers  him 
as  under  an  influence  which  may  warp  his  integrity,  or  pervert 
his  judgment,  and  therefore  will  not  trust  him. 

So,  in  an  action  qui  tarn  under  the  act  for  preventing  usury, 
which  gives  a  moiety  of  the  sum  to  be  recovered  to  the  poor  of 
the  town  where  the  offence  is  committed,  and  the  other  moiety  to 
the  person  prosecuting,  it  is  a  good  cause  of  challenge  against  the 
jury,  that  they  are  inhabitants  of  the  town. 

It  is  a  good  cause  of  ch'allenge  to  a  juror,  that  he  has  previously 
given  his  opinion  on  the  question  in  controversy  between  the  par- 
ties. But  where  a  juror  said,  "that  if  the  reports  of  the  neigh- 
bours were  correct,  the  defendant  was  wrong,  and  the  plaintiff 
was  right,"  this  was  held  not  to  be  a  sufficient  objection  to  his 
being  sworn. 

But  when  a  juror  is  not  under  a  bias  on  either  side,  or  if  he  has  not 
given  apparent  marks  of  partiality,  yet  there  may  be  sufficient 
reason  to  suspect  he  may  be  more  favourable  to  one  side  than  the 
other  ;  and  this  is  a  challenge  to  the  favour  ;  as  if  the  juror's  son 
has  married  the  plaintiff's  daughter  ;  because  this  is  not  contained 
•within  the  words  of  the  writ,  therefore  no  principal  cause  of 
challenge,  but  only  to  the  favour;  because  such  juror  is  not  with- 


Co.  Litr. 
157.  b. 


I  R.  L.  496, 


3  Blatk. 
Com.  362. 
Co.Litt.  15'. 
b. 


s  ni.  Com. 
ses. 

3  Burr.  1856 


Wood  Y. 
StoddanJ, 


194. 


Elake  r. 
Milhpaugl/, 
1  Johns.  Htji 
316. 

Durell  T. 
MoshiT, 

8  Joluii.  Rep. 

445. 


Gilb.   C. 


216  JUR\. 

in  the  power  of  the  party  ;  and  in  these  inducements  to  su  , 
of  favour,  the  question  is,  whether  the  juryman  is  indifferent  as  In.- 
st.t'ids  unsworn  ;  for  a  juryman  ought  to  be  perfectly  impartial  tu 
either  side ;  for,  otherwise,  his  ati'ection  will  give  weight  to  tho 
evidence  of  one  party  ;  and  an  honest,  but  weak  man,  may  be  as 
much  biassed  as  to  think  he  goes  by  his  evidence,  when  his  aft'cc- 
tions  add  weight  to  the  evidence  ;  now  since  the  writ  expects  those 
by  whom  the  truth  mny  be  best  known,  it  excludes  all  those 
who  are  apparently  partial,  without  any  trial,  because  they  arc 
not  under  the  qualifications  in  the  writ,  since  the  truth  cannot  be 
kno\vn  by  them  ;  but  where  the  partiality  is  not  apparent,  but 
only  suspicion*,  the  juror  is  to  be  tried,  whether  favourable  or  not, 
and  if  the  triors  think  he  is,  then  he  is  to  be  excluded. 

:>  Black.com.       4^  Challenges  propttr  delictum  are    for  some  crime  or  misde- 
usia.0          ineanour  that  affects  the  juror's  credit,  and  renders  him  infamous  ; 

as,  for  a  conviction  of  treason,  felony,  perjury,  or  conspiracy. 
Co.  Liu,  158.       After  a  challenge  to  the  array,  the  party  may  challenge  the 
riolls  :  but  after  a  challenge  to  the  polls,  there  can  be  no  challenge 
to  the  array. 

Hob.  ass.  It  is  laid  down  as  a  rule,  that  there  can  be  no  challenge,  either 

-$fac'  Abr'  to  the  array  or  polls,  before  a  full  jury  appears  ;  and,  therefore, 
in  a  case  where  the  plaintiff,  after  he  had  prayed  a  tales,  chal- 
lenged the  array  thereof  for  partiality  in  the  sheriff;  though  it 
was  objected  that  this  being  by  his  own  desire,  he  was  afterwards 
estopped  to  take  any  exceptions  to  the  sheriff;  yet  the  challenge 
Avas  allowed  good  ;  for  if  he  had  not  prayed  a  tales,  there  could 
not  have  been  a  full  jury,  and  then  there  could  be  no  challenge. 
3  Bac.  Abr.  ^o  juror  can  be  challenged  without  consent,  after  he  hath 

been  sworn. 
<:o.  Litt.iss.       He  who  hath  several   causes  of  challenge  against  a  juror,  must 

take  them  all  at  once, 
ibid.  If  a  juror  be  challenged  by  one  party  and  found  indifferent, 

the  other  party  may  challenge  him  afterwards. 

12 East.  Rep.       ]f?  On  a  juror  being  calied,  another  person  answers  to  his  name, 
and  is  sworn   and  serves   en  tlie  jury,  it  does  not  appear  to  be 
a  sufficient  ground  for  setting  aside  the  verdict,  even  in  a  capita! 
case  ;  but  it  would  have  been  a  good  cause  of  challenge. 
'.  Bac.  Abv.       A  principal  cause  of  challenge  is  grounded  on  such  a  manifest 
presumption  of  partiality,  that  if  it  be  found  true,  it  unquestiona- 
bly sets  aside  the  array  or  the  juror,  without  any  other  trial  than 
its  being  made  out  to  the  satisfaction  of  the  court  before  which 
the  panel  is  returned  ;  but  a  challenge  to  the  favour,  where  the 
partiality  is  not  apparent,  must  be  left  to  the  discretion  of  the  triors. 
s  Bac.  Abr.       If  the  array  be  challenged,  and  the  facts  alleged  in  the  chal- 
ks Hale, p.  c.  lenge  denied,  it  lies  in  the  discretion  of  the  court,  how  it  shall  be 
avs.  tried  :  sometimes  it  is  done  by  two  attornies,  sometimes  by  two 

Gardner  v. 

Turner,         coroners,  and  sometimes  by  two  of  the  jury  ;  with  tnisdnlerence, 

<Uolms.Hep.  that  if  the  challenge  be  for  kindred  in  the  sheriff,  it  is  most  fit  to 

';,-  fried  by  two  of  the  jurors  returned  j  if  for  favour,  then  by  ;;tn 


JURY.  217 

other  two  assigned  thereunto  by  the  court.  If  the  triors  prorwinee 
iheriusi;  of  challenge  unfounded,  the  trial  proceeds.  If  the  ,  ts 
are  admitted,  and  are  deemed  insufficient,  the  court  adjudge*  ->n 
them,  and  either  quashes  the  array,  or  overrules  the  challenge. 

Tin-  triors  of  a  challenge  to  the  polls,  in  case  the  first  mau  rail-    3  RJ.  com. 
ed  be  challenged,  are  two  indifferent  persons  named  hy  the  court;    'J6*-  Co-  Li.f 
and  if  they  try  one  man,  and  find  him  indifferent,  he  shall  he  sworn, 
and  then  the  two   triors  shall  try  the  next;  and  when  another  is 
found  indifferent  and  sworn,  the  two   triors  shall  be  superseded, 
and  the  two  first  sworn  on  the  jury  shall  try  the  rest. 

The  trior's  oath  is,  "  low  shall  well  and  truly  try,  whether  A.  B.    *S*lk.  142, 
(the  juryman  challenged)  stand  indifferent  between  the  parties  to 
this  issue  :  So  help  you  God." 

A  juror  may  himself  be  examined  on  oath  of  voiredire,  with  re-    3  ni.  "om. 
gard  to  such  causes  of  challenge  as  are  not  to  his  dishonour  or  dis-    14B'  b>°' 
credit  ;  but   not  with   regard  to  any   crime,  or  any   thing  which 
ttnds  to  his  disgrace  or  disadvantage. 

II.  Demeanour  of  the  jury  in  making  up  their  verdict,  and 
hbiv  it  is  to  be  given. 

The  jury,  after  the  proofs  are  summed  up,  unless  the  case  be    3  B).  Com. 
very  clear,  withdraw  from  the  bar  to   consider  of  their  verdict :   227;  ^  °* 
and,  in  order  to  avoid   intemperance  and  causeless  delay,  are  to 
he  kept  without  meat,  drink,   fire,  or   candle,   unless   by  permis- 
sion of  the  judge,   till   they  are  unanimously   agreed.     And  they 
are  not  to  be   suffered  to  speak  with  any  one  except  the  officer 
who  has  been  sworn  to  attend  them,  and  not  with  him  until  they 
be  agreed. 

If  the  jury,  after  the  evidence  given  to  them  at  the  bar,  do,  at  Co.  lit,  2p. 
their  own  charges,  eat  or  drink, -either  before  or  after  they  be 
agreed  on  their  verdict,  it  is  fineable  ;  but  it  shall  not  avoid  the 
verdict ;  but  if  before  they  be  agreed  on  their  verdict,  they  eat 
or  drink  at  the  charge  of  the  plaintiff,  if  the  verdict  be  given 
for  him,  it  shall  avoid  the  verdict  ;  but  if  it  be  given  for  the 
defendant,  it  shall  not  avoid  it  ;  and  so  on  the  contrary.  But 
if  after  thej'  be  agreed  on  their  verdict,  they  eat  or  drink  at  the 
charge  of  him  for  whom  they  pass,  it  shall  not  avoid  th/c  verdict. 

But  with   the  assent   of  the  justices  they  may  both   eat  and    Doct.  ami 
drink  ;   as  if  any  of  the  jurors  fall  sick-  before  they  be  agreed   Stud%158- 
on  their  verdict,  then  by  the  assent  of  the  justices  he  may  have 
meat  or  drink,  and  also  such  other  things  as  be  necessary  for  him 
and  his  fellows  also,  at  their  own  costs,  or  at  the  indifferent  costs  . 
of  the  parties,  if  they  so  agree  :  And  if  they  cannot  agree,  the 
justices  may  in  such  case   suffer  the  jury  to  have  both  meat   and 
drink  for  a  time,  to  see  whether  they  will  agree. 

On  the  return  to  a  certiorari  from  a  justice's  court,  it  appeared   Hewitt" 
that  after  the  evidence  was  closed,  there  being  no  constable  pre-    11  Jai>n«. 

t,  it  was  agreed  by  the  parties  that  the  jury  mi^ht  retire  to   Be*'  *3*' 
I  28  ] 


218 


Co.  Lit.  227. 
3  Johns.  Rep. 
252. 


jRlackley  v. 

bheldon, 

7  Johns.  Rep. 

32. 

2  Hale,  P.  C. 

296. 


Thayer  v. 
Van  Vleet, 
5  Johns.  Ken. 
VI. 


Henlow  v. 
L-onard, 
'•  .lohnj.Kep. 
ZOfc 


consider  of  their  verdict  without  a  constable  to  attend  them.  Af- 
ter being  out  some  time,  the  jury  applied  to  the  justice  to  be  dis- 
charged, alleging  that  they  could  not  agree  ;  but  the  justice  refused 
to  discharge  them.  After  some  further  time  a  second  and  third 
application  was  made  by  the  jury  to  be  discharged,  which  was 
refused.  The  jury  then  called  for  spirits,  and  admitted  other 
persons  among  them,  and  after  some  time  spent  in  drinking,  &tc. 
they  found  a  verdict  for  the  plaintiff.  The  drink  was  delivered 
to  the  jury  with  the  defendant's  consent.  Per  curiam.  The 
consent  of  the  parties  that  the  jury  might  retire  without  any  con- 
stable to  attend  them,  was  a  waiver  of  the  irregularity  complained 
of  in  their  conduct.  The  parties  by  their  agreement  took  from  the 
magistrate  the  power  which  he  would  otherwise  have  had,  of 
enforcing  a  private  deliberation  by  the  jury,  and  of  preventing 
their  obtaining  refreshment. 

If  the  plaintiff,  after  the  evidence  has  been  given,  and  the  jury 
are  departed  from  the  bar,  or  any  person  for  him,  deliver  any 
letter  from  the  plaintiff  to  any  of  the  jury,  concerning  the  matter 
in  issue,  which  was  not  given  in  evidence,  it  shall  avoid  the  ver- 
dict, if  it  be  found  for  the  plaintiff,  but  not  if  it  be  found  for  the 
defendant,  and  so  on  the  contrary.  But  if  the  jury  carry  away 
any  writing  unsealed,  which  was  give-n^in  evidence  in  open  court, 
this  shall  not  avoid  their  verdict,  although  they  should  not  have 
carried  it  with  them. 

When  the  jury  are  retired  under  the  charge  of  the  officer 
they  may  come  back  into  court  to  hear  the  evidence  of  a  Ihing, 
of  which  they  are  in  doubt.  So,  if  after  they  have  retired  they 
should  desire  to  propound  questions  to  the  court,  it  shall  be  grant- 
ed, so  it  be  in  open  court. 

On  a  eertiorari  from  a  justice's  court,  it  appeared  that  at  the 
trial  before  a  jury,  the  parties  exhibited  their  proofs,  and  the  de- 
mand appeared  to  have  been  sufficiently  supported.  After  the 
jury  had  retired,  they  sent  for  the  justice,  who  went  to  the  room 
where  the  jury  were  sitting  ;  and  one  of  the  jury  asked  him  whe- 
ther they  could  add  any  thing  to  the  charge  of  the  plaintiff,  and  tlu^ 
justice  answered,  "  no,"  and  left  them  without  any  thing  further 
being  said.  The  jury  found  a  verdict  for  the  plaintiff.  Per  curiam, 
The  evidence  was  sufficient  to  justify  the  verdict ;  and  the  fact  of 
the  justice  going  to  the  jury,  and  answering  the  question  of  law- 
put  to  him,  is  not  an  irregularity  for  which  the  verdict  ought  to 
be  set  aside.  There  was  in  this  case  no  semblance  of  abuse  ; 
and  the  c«nsent  of  the  parties  may  be  inferred. 

Where  a  cause  before  a  justice  was  tried  by  a  jury,  and  after  the 
jury  had  retired  to  deliberate  on  their  verdict,  they  sent  to  the 
justice  requesting  that  a  witness  who  had  been  previously  sworn 
in  the  cause  might  be  sent  to  them,  or  that  they  might  come  into 
court,  in  order  to  ask  the  witness  some  questions,  and  the  justice 
asked  the  parties  if  they  would  go  to  the  jury,  that  the  witness 
might  be  examined,  and  the  defendant  refused ;  and  the  justio- 


JURY.  21 9 

permitted  the  witness  to  go  into  the  jury  room,  and  siood  at  the 
door  while  he  was  examined,  and  then  retired  with  the  witness, 
and  the  jury  afterwards  found  a  verdict  for  the  plaintiff,  this  was 
held  on  wrtiorari  not  to  be  a  sufficient  irregularity  to  set  aside  the 
verdict.  The  court  said,  that  as  it  appeared  to  have  been  done 
openly,  after  notice  to  the  parties,  and  as  we  may  fairly  pre- 
sume, in  their  presence,  there  was  no  ground  of  complaint. 

It  was  stated  in  the  return  to  a  certiorari,  that  while  the  jury  *^*' 
were  deliberating  on  their  verdict,  the  justice  was  rcqueste-d  by  10  Jotjj;- 
the  jury  to  inform  them  whether  a  particular  point  of  evidence 
had  been  given,  stating  it  to  him.  The  justice  informed  the  jury 
that  it  had  been  given,  and  mentioned  the  witnesses  who  had  testi- 
fied to  the  fact.  A  verdict  was  found  for  the  plantiff.  Per  curiam. 
It  cannot  fairly  be  inferred  from  the  return,  that  the  explanation 
given  by  the  justice  to  the  jury,  after  they  had  retired  to  make 
up  their  verdict,  was  by  the  consent  or  in  the  presence  of  the  par- 
ties ;  if  it  was  not,  the  allowance  of  such  a  practice  would  be  dan- 
gerous to  the  rights  of  parties.  The  justice's  recollection  might 
not  be  accurate  as  to  what  the  witnesses  had  said,  and  for  that  reason 
the  testimony  might  be  misstated  ;  when,  if  the  parties  were  pre- 
sent, or  the  witnesses  again  called  to  repeat  their  testimony,  any 
mistake  might  be  corrected.  The  judgment  must  be  reversed. 

As  to  discharging  the  jury  because  they  cannot  agree  upon  a 
verdict,  see  INDICTMENT. 

Where  a  jury  was   sworn  and  empanelled  to  try  a  prisoner  on   The  People 
.several  indictments,  and  after  giving  a  verdict  of  not  guilty  on  the  4johm!^ej>. 
first  indictment,  they  separated  and  went  to  a  tavern,  and  then  294- 
returned  into  court,  when  the  prisoner  was  tried  by  the  same  jury 
on  the  other  indictments  ;  the  court  held  that  the  proceedings  on 
the  other  indictments  were  irregular,  and  that  the  jury  ought  to 
have  been  sworn  and  empanelled  again  :  but  they  gave  no  opinion 
whether  the  prisoner  should  be  discharged,  or  a  new  trial  granted. 

If  a  jury  cast  lots  for  their  verdict,  it  shall  beset  aside,  and  they  2  Bums' Just. 
shall  be  fined  for  the  contempt.  804' 

If  a  jury  agree,  in  order  to  ascertain  the  amount  of  damages,   Smith  r. 
that  each  juror  shall  set  down  such  sum  as  he  thinks  fit,  that  the  3  cainesT* 
aggregate  shall  be  divided  by  twelve,  and  that  the  quotient  shall  be   ReP- S1t 
their  verdict,  it  will  be  set  aside. 

But  if  it  is  merely  adopted  as  a  means  of  arriving  at.  a  reasona-  Dana  v: 
ble  measure  of  damages,  without  their  binding  themselves  to  abide,  4  Johns. 
at  all  events,  by  the  contingent  result,  the  verdict  is  good.  ncP-  487* 

Where  the  jury  have  drawn  lots  for  their  verdict,  or  tossed  up   i  Term 
for  it,  the  affidavit  of  none  of  the  jurymen  can  be  admitted  in  evi-   ^j^iin^Rcp. 
dence  of  the  fact,  in  all  of  whom  such  conduct  is  a  very  high  487. 
misdemeanour ;  but  in  every  such  case  the  court  must  derive  their  pui^'n. 
knowledge   from  some  other  source,  such  as  from  some  person   326< 
having  seen  the  transaction  through  a  window,  or  by  some  other 
means.     But  the  affidavits  of  the  jurors  in  exculpation  of  them- 
selves, and  in  support  of  their  verdict,  arc  admissible. 


Co.  Liu.  227.  After  the  jury  are  agreed,  they  may,  in  causes  between  paitv 
and  party,  if  the  court  be  risen,  give  a  private  verdict  before 
any  of  the  judges  of  the  court ;  and  then  they  may  eat  and 
drink  ;  and  the  next  morning,  in  open  court,  they  may  either  af- 
firm ot  alter  their  private  verdict,  and  that  which  is  given  in  court 
shall  stand  ;  but  in  criminal  cases,  they  can  give  no  private  ver- 
dict; they  may  vary  from  their  verdict  before  it  is  recorded,  but 
afterwards  they  cannot. 

Bunn  v.  Where  a  jury  deliver  a  sealed  verdict  to  the  court,  and  on  be- 

"''     s.Htp.   in?  polled,  one  of  them  disagrees  to  the  verdict,  thfe  judge   may 

send  the  jury  out  again  to  agree  on  their  verdict.  ,^ 

Kooi^.sher-  Where  a  trial  had  lasted  until  late  in  the  evening,  after  the 
e  JotL.  iu-p.  charge  of  the  judge,  the  parties  agreed  that  the  jury  might  seai 
es-  up  their  verdict.  At  the  opening  of  the  court  on  the  next  day, 

the  jury  appeared,  and  the  foreman  delivered  the  sealed  verdict, 
which  was  opened  and  read.  On  being  polled,  nine  of  the  jurors 
dissented  from  the  verdict  ;  but  at  the  same  time  stated  that  they 
did  agree  to  the.  verdict  when  it  was  made,  and  so  informed  the 
constable  before  they  separated.  Per  curiam.  The  jury,  when 
they  came  to  the  bartodeliverin  their  verdict,  had  a  right  to  disseir 
from  the  verdict  to  which  they  had  previously  agreed.  There  is 
no  verdict  of  any  force  but  a  public  verdict,  given  openly  in  court  ; 
until  it  was  received  and  recorded  it  was  no  verdict,  and  the  jury 
had  a  right  to  alter  it  as  they  may  a  private  verdict.  The  pre- 
vious agreement  that  the  jury  might  seal  up  their  verdict,  did  not 
take  away  from  the  parties  the  right  to  a  public  verdicts  duly 
delivered. 

Uiakeiyv.  In  error  on  certiorari.     The  jury  having  agreed   on  their  vr.r- 

? Johns! Rep.  diet,  returned  into  court  and  delivered  the  same  in  writing  lo  the 
32«  justice,  by  which  they  found  for  the  defendant.  The  justice, 

without  publishing  their  verdict,  or  making  it  known,  informed 
the  jury  that  in  his  opinion  they  had  mistaken  the  evidence,  and 
requested  them  to  reconsider  their  verdict.  The  jury  retired. 
and  soon  after  requested  to  have  a  witness  re-examined  :  and 
the  witness  was  re-examined  in  the.  presence  of  both  parties,  aiu' 
without  objection  by  either.  The  jury  then  brought  in  a 
verdict  in  writing,  in  favour  of  the  plaintiff,  for  twenty- four 
dollars  and  forty-two  cents,  on  which  judgment  was  given  by 
the  justice.  Per  curiam.  The  law  is  well  settled,  that  before  a 
verdict  is  recorded,  the  jury  may  vary  from  the  first  offer  of  their 
verdict,  and  the  verdict  which  is  recorded  shall  stand  ;  arid  there 
are  many  cases  in  the  books  of  a  jury  changing  their  verdict,  im- 
mediately after  they  have  pronounced  it  in  open  court,  and  be- 
fore itrwas  received  and  entered.  The  verdict  is  not  recognised 
as  valid  and  final,  until  it  be  pronounced  ant)  recorded  in  open 
court  ;  and  it  is  reasonable  that  the  jury  should  be  enabled  to 
avail  themselves  of  the  locus  pcenitenticE,  and  correct  a  verdict 
-vhich  they  have  mistaken,  or  about  which,  upon  further  reflec- 


JURY 

liu.j,  tliey  have  doubt.  After  the  verdict  is  received,  the  jury 
may  be  examined  by  the  poll,  if  the  court  please,  and  then  cither 
of  the  jurors  may  disagree  to  the  verdict.  So,  when  the  jury 
rtre  retired  under  the  charge  of  the  officer,  they  may  come  back 
into  court  to  hear  the  evidence  of  a  thing  of  which  they  are  in 
doubt.  The  law  allows  the  jury  all  reasonable  opportunity  be- 
fore their  verdict  is  put  upon  torord,  and  they  are  discharged,  to 
discover  and  to  declare  the  truth  according  to  their  judgmeu' 
The  court  may  also,  of  its  own  accord,  send  the  jury  hack  to  re- 
consider their  verdict,  if  it  appears  to  be  a  mistaken  one,  and  be- 
fore it  is  received  and  recorded.  The  only  question  is,  whether 
this  law  is  applicable  to  the  trial  by  jury  in  a  justice's  court. 
The  act  says,  that  "  when  the  jurors  have  agreed  on  their  ver- 
dict, they  shall  deliver  the  same  to  the  justice  in  the  same  court, 
who  is  thereby  required  to  give  judgment  thereupon."  This 
leaves  the  law  precisely  the  same  as  before  ;  for  the  judgment  i:; 
to  be  upon  the  verdict  agreed  to  by  the  justice,  which  means 
their  final  and  definitive  agreement :  for  they  have  the  same  right, 
and  ought  to  have  the  same  opportunity  to  correct  a  mistake,  or 
to  reconsider,  that  juries  have  in  other  courts,  for  the  verdict  i- 
equally  binding  upon  their  consciences,  and  still  more  conclusive, 
upon  the  parties.  If  the  verdict  be  delivered  in  writing,  as  it  was. 
here,  the  justice  had  a  right  to  permit  the  verdict  to  be  taken  by 
the  poll,  and  the  jury  had  a  right  to  vary  from  their  first  finding. 
They  had  a  right  to  retire  and  reconsider;  and  all  that  the  justice 
did  in  this  case  was,  to  request  the  jury  to  reconsider  their  ver- 
dict. They  might  have  refused  to  reconsider,  and  have  insisted 
upon  adhering  to  their  first  verdict  ;  but  they  consented  to  recon- 
sider. It  was  their  voluntary  act,  and  one  which  they  had  a 
right  to  do.  There  was  nothing  then  erroneous  in  the  conduct 
of  the  justice.  The  verdict  received  and  recorded  was  the  only 
one  to  be  regarded,  and  consequently  the  judgment  below  ought 
to  be  affirmed. 

No  jury  shall  be  compelled  to  give  a  general  verdict,  so  thai 
they  find  a  special  verdict,  and  show  the  truth  of  the  fact,  and  re- 
quire the  aid  of  the  court  or  justices.  Sess.  36.  c.  4.  s.  27.  1 
U.  L.  335. 

IV.   Corruption  in  jurors. 

••  If  any  of  the  jurors  sworn  for  the  trial  of  any  issues,  or  other 
inquests,  to  he  taken  between  the  people  of  the  state  of  New- 
Vork,  and  any  party,  or  between  party  and  party,  shall  have  taken 
;uiy  thing  to  give  their  verdict,  and  thereof  be  found  guilty  in  any 
court  of  record,  either  at  the  suit  of  any  party,  or  any  other  per- 
r-on  that  will  sue  for  himself  and  the  people  of  the  state  of  New- 
York,  every  of  the  said  jurors  shall  pay  ten  times  as  much  as  he 
hath  taken,  with  the  costs  of  suit :  and  he  that  will  sue  shall  have 
t.h»?  onf.  half,  and  thn  people  of  the  state  of  New-York 


JUSTICES  OF  THE  PEACE 

other  half;  and  all  embraceors  that  procure  such  jurors  and  in- 
quests to  take  gain  or  profit,  shall  be  punished  in  the  same  man- 
ner and  form  as  the  jurors ;  and  if  the  party  to  the  plea  shall 
bring  any  such  suit  or  action,  and  shall  recover  therein,  he  shall 
also  recover  his  damages  by  the  assessment  of  the  inquest ;  and 
if  the  juror  or  embraceor  so  found  guilty  shall  not  have  whereof 
to  make  satisfaction  in  the  manner  aforesaid,  he  shall  be  impri- 
soned for  one  year."  Sess.  36.  c.  4.  s.  26.  1  R.  L.  331. 


I  Bl.  Com. 


i  Ul.  Com. 

350. 

3  Bac.  Abr. 


.3  Bac.  Abr. 
•ft?,  783. 


JUSTICES  OF  THE  PEACE. 

I.   Origin  and  authority  of  justices  of  Hie  peace. 
II.  By  what  justice,  and  where  jurisdiction  may  be  exercised, 

III.  fees  of  justices  of  the  peace. 

I V.  Their  indemnity  and  protection  in  the  right  execution  of  their 

office,  and  their  punishment  for  the  omission  of  it. 

V.  Authority  under  the  laws  of  the  United  States. 

I.   Origin  and  authority  of  justices  of  the  peace. 

The  common  law,  says  Biackstone,  hath  ever  had  a  special 
care  and  regard  for  the  conservation  of  the  peace  ;  for  peace  is 
hie  very  end  and  foiw-hition  of  civil  society.  And  therefore,  be- 
fore the  present  constitution  of  justices  was  invented,  there  were 
peculiar  officers  appointed  by  the  common  law  for  the  mainte- 
nance oi  the  public  peace.  Of  these,  some  had,  and  still  have, 
tlvs  power  annexed  to  other  offices  which  they  hold  ;  others  had 
!*•  merely  by  itself,  and  were  thence  named  custodes,  or  conserva- 
tores  pads.  Those  that  were  so  virtute  ojjicii  still  continue  ;  but 
the  latter  sort  are  superseded  by  the  modern  justices. 

Among  other  tx  ojficio  conservators  of  the  peace,  by  the  com- 
mon law,  are  the  chancellor  and  the  justices  of  the  King's  bench, 
whose  respectiv  e  jurisdiction  is  by  the  law  of  this  state  vested  in 
the  chancellor  of  the  state,  and  the  justices  of  the  supreme  court. 
Their  authority  extends  throughout  the  whole  state,  and  they 
may  commit  all  breakers  of  the  peace,  or  bind  them  in  recog- 
nisances to  keep  it.  And  all  courts  of  record,  as  such,  have  pow- 
er to  keep  the  peace  within  their  own  precincts. 

Also,  every  sheriff  is  a  principal  conservator  of  the  peace  with- 
in his  county,  and  may,  ex  ojjlcio,  award  process,  and  take  surety 
for  it ;  so,  a  coroner  is  another  principal  conservator  of  the  peace, 
and  may  bind  any  one  to  the  peace  who  shall  make  an  affray  in 
his  presence,  but  he  is  said  to  have  no  authority  to  grant  process 
for  the.  peace  ;  and  it  seems  that  the  security  taken  by  him 
for  the  peace,  does  not  amount  to  a  recognisance,  as  it  is  said  to 
Jo  when  taken  by  a  sheriff,  but  merely  to  a  common  obligation. 


JUSTICES  OF  THE  PEACE. 

Also,  every  constable  is  a  conservator  of  the  peace  within  hi  i 
limits,  see  AFFUAY,  III. 

Fit  and  discreet  men  are  to  be  appointed,  in  every  county,  justi- 
ces to  keep  the  peace  ;  they  are  appointed  by,  and  hold  their 
offices  during  the  pleasure  of  the  council  of  appointment.  2  11. 
L.  506.  Cous.  N.  Y.  Art.  XXIII.  XXVIII. 

Justices  of  the  peace  are  empowered,  jointly  and  severally,  ir> 
their  respective  counties,  "  to  cause  to  be  kept  all  laws  made  for 
the  preservation  and  good  of  the  peace,  and  to  cause  to  come  before 
them,  or  any  of  them,  all  persons  who  shall  break  the  peace,  and 
to  commit  them  to  gaol,  or  to  bail  them,  as  the  case  may  require  ; 
and  also  to^ause  to  come  before  them,  all  persons  who  shall  threateu 
to  break  the  peace,  or  who  be  not  of  good  fame,  to  find  sufficient 
security  for  the  peace,  or  for  their  good  behaviour,  or  both,  as 
the  case  may  require  ;  and  if  they  refuse  to  find  such  security,  to 
commit  them  to  prison  until  they  shall  find  the  same.  Sess.  35. 
c.  1  04-.  s.  1.  2  R.  L.  506. 

For  the  mode  in  which  the  power  hereby  granted  is  to  be  ex- 
ercised, as  well  as  for  the  other  cases  in  which  justices  of  the 
peace  have  jurisdiction,  the  reader  is  referred  to  the  respective 
titles  of  this  compilation. 

The  proceedings  before  a  justice  of  the  peace  are  generally  of  3  Bum 
record.  Thus,  a  conviction  under  the  act  to  lay  a  duty  on  strong 
iiquors,  is  a  record,  and  as  long  as  it  continues  unreversed,  is  en- 
titled to  implicit  credit,  and  is  conclusive  evidence  of  the  truth  of 
the  facts  stated  in  it.  But  where  the  justice  proceeds  under  the 
twenty-five  dollar  act,  it  is  otherwise,  although  the  proceedings 
may  be  in  a  qui  tarn  action  for  the  recovery  of  a  penalty,  at  the 
same  time  that  if  the  party  had  chosen  to  proceed  for  the  same 
penalty  by  information,  the  conviction  in  consequence  of  that 
information  would  have  been  a  record. 

A  justice  of  the  peace  shall  not,  by  virtue  of  his  office,  be  liable 
to  any  penalty  for  not  attending  any  court  of  oyer  and  ter- 
miner,  unless  the  duties  of  his  office  require  him  to  attend  them. 
Sess.  35.  c.  66.  s.  23.  1  R.  L.  34-1. 

For  the  oath  to  be  taken  by  a  justice  of  the  peace,  see 


II.  By  ivhat  justice,  and  where,  jurisdiction  may  be  f.rerci*e</. 

Where  a  thing  required  to  be  done  by  two  justices  is  of  a  judi-  a  n»c.  A)jr. 
cial  ii.  y  must  both  be   present  at   the  execution  of  it  ;  r' 

as  if  t\vo  jus,  .  ;t  adjudge  a  person  the  father  of  a  bastard  child, 
and  the  exami  'ion  is  said  to  be  by  one  of  them,  this  is  naught: 
fo  the  exainin;  ;  on,  being  a  judicial  act,  ought  to  be  by  both,  and 
it  is  not  sufficuM  I  that  one  of  them  examined,  and  made  a  report 
to  the  other  :  nut  if  they  are  both  present,  and  one  alone  ex,- 
amines,  or  asks  questions,  it  is  well  enough  ;  so,  where  two  jus- 
tices are  enabled  to  bail  a  person,  they  ought  both  to  be  present 
to.  do  it,  and  not  one  of  them  first  to  ei^n  the  recognisance. 


221 


3  Bac.  Abr. 
797. 


3  Bac.  Abr. 
T9I. 


2  Half,  P.  C. 
50,51. 

2Hawk.e.  8. 
t.  It. 


2  Hale,  P.  C. 

i'.. 


Jacknn  T. 
Humphrey, 
I  Johns,  liep. 


3   Bac.    Abr. 
tOO,  801. 


1  B«c.  Abr. 

801. 

HeiT. 

Brooke, 

3  Term  Rep. 

190. 


Corwein  T. 
Hoim-j, 

Eep.  :;. 


JUSTICES  OF  THE  PEACE. 

and  then  send  it  to  another.  But  where  the  act  to  be  done  is 
merely  ministerial,  the  concurrence  of  the  justices  together  is  not 
requisite. 

A  single  justice  cannot  bail  a  person  that  is  committed  by 
ord^r  of  the  sessions  ;  for  he  that  bails  must  have  as  hiph  a  power 
as  he  who  commits.  But  whatsoever  power  is  given  to  a  justice 
or  two  justices  of  the  peace,  by  any  statute,  is  given  to  the  ses- 
sions of  the  peace,  which  consists  of  a  collection  of  justices. 

It  has  been  holden,  that  where  a  statute  says  the  next  justice, 
it  must  be  the  next  ;  but  where  it  says  the  justices  of  the  peace  in 
or  near  the  place,  there  any  justice  of  the  peace  in  the  county  will 
serve. 

A  justice  of  the  peace  cannot  do  a  judicial  act  out  of  the  coun- 
ty wherein  he  is  a  justice,  as  to  take  recognisances  or,  informa- 
tions, unless  offered  voluntarily.  So  he  can  do  no  act  of  a  com- 
pulsory nature,  except  in  his  own  county.  He  cannot  fetch  a 
person,  by  his  warrant,  out  of  the  county  in  which  he  is  justice, 
before  him  in  another  county.  So  he  cannot  make  an  order  of 
bastardy,  and  like  orders,  which  are  coercive  upon  the  parties,  or 
imprison  for  not  giving  a  recognisance,  or  commit  for  a  crime,  ex- 
cept in  his  own  county. 

A  justice  of  the  peace  may,  however,  do  a  ministerial  act  out  of 
his  county  :  but  any  act  done  out  of  the  state,  it  would  appear, 
from  the  following  case,  would  be  illegal  : 

A  deed  was  proved  by  a  subscribing  witness,  before  a  judge 
of  one  of  the  courts  of  common  pleas  in  this  state,  being  at 
the  time  of  making  such  proof  in  Canada.  The  court  held,  that 
the  oath  administered  in  Canada  was  extra  judicial,  and  of  no  va- 
lidity; and  that  the  judge  had  no  authority  to  administer  an  oath 
out  of  the  jurisdiction  of  this  state,  nor  could  the  witness  in  such 
case  be  indicted  for  perjury. 

Regularly,  a  justice  of  the  peace  ought  not  to  execute  his  of- 
fice in  his  own  case  ;  but  cause  the  offenders  to  be  convened  or 
carried  before  some  other  justice,  or  desire  the  aid  of  some  other 
justice  being  present.  But  in  some  cases,  it  seem  justifiable  for 
him  to  act  in  his  own  cause,  as  when  a  justice  shall  be  assaulted, 
or,  (in  the  execution  of  his  office  especially,)  shall  be  abused  to 
his  face,  and  no  other  justice  present  with  him  :  then,  it  seems, 
he  may  commit  such  offender,  until  he  shall  find  sureties  for  the 
peace,  or  for  his  good  behaviour,  as  the  case  may  require. 

Justices  of  the  peace,  it  seems,  may  supersede  their  OWH 
order  quiit  imvroi'ide  emanavit,  if  it  have  not  been  acted  upon: 
but  one  justice  cannot  supersede  a  warrant  of  commitment  by 
another  justice,  without  a  legal  inquiry  and  examination  of  the 
matter. 

It  is  no  objection  to  a  justice  of  the  peace  who  tries  an  action 
on  a  penal  statute,  that  he  is  an  inhabitant  of  the  town,  to  the 
overseers  of  the  poor  of  which,  a  moiety  of  the  pcnnlty,  when 
recovered,  r-  directed  to  be 


JUSTICES  OP  THE  PEACE. 


III.  Fees  of  justices  of  the  peace. 

For  a  precept  to  summon  a  jury  to  inquire  of  a  forcible  entry   Sen.36  c.  83. 
pr  drtainiT,  thirty-seven  and  a  half  cents. 

Administering  an  oath,  twelve  and  a  half  cents. 

Swearing  a  jury  to  inquire   of  a  forcible  entry  or  detainer, 
twenty-five  cents. 

For  drawing  a  conviction  of  a  forcible   entry  or  detainer,  one 
dollar. 

A  warrant  of  restitution,  thirty-seven  and  a  half  cents. 

A  mittimus  for  a  fine  or  forfeiture,  nineteen  cents. 

A  warrant  against  any  person  for  a  breach  of  the  peace,  or  a 
misdemeanour,  nineteen  cents. 

A  bond  or  recognisance,  twenty-five  cents. 

A  summons  upon  a  penal  law,  twelve  and  a  half  cents. 

Drawing  a  conviction,  thirty-seven  and  a  half  cents. 

A  warrant  to  levy  a  penalty,  nineteen  cents. 

ffl.  Their  indemnity  and  protection  in  the  right  execution  of  their 
office,  and  their  punishment  for  the  omission  of  it. 

A  justice  of  the  peace  is  strongly  protected  by  the  law  in  the  3Burn»,3?, 
Just  execution  of  his  office.     And  words  spoken  of  him  in  the  ex-    sot.*0'  Abr* 
ecution  of  his  office,  if  in  his  absence,  are  actionable  ;  if  he  be 
present,  they  are  indictable,  or  the  justice  may  himself  imme- 
diately commit  the  party. 

A  justice  is  not  liable  to  an  action  for  what  he  does  as   judge,   3Bums,32. 

,  .    ,     ,        -  ,    ,    .     '.e    '    2Hawk.c.l3. 

in  matters  which  he  has  power  by  law  to  hear  and  determine,  s.ig. 

without  the  concurrence  of  any  other,  but  is  only  punishable  at  ^fivj.  c°*j 

the  suit  of  the  people  ;  for  regularly,  no  man  is  liable  to  an  ac-  R.  v.  Paimsr, 

tion  for  what   he  does  as  judge.     But  in  cases  where  he  pro-  Rfv.rjack6-2" 

ceeds  ministerially,  rather  than  judicially,  if  he  acts  corruptly,  he  *>n,  IT.  R. 
may  be  proceeded  against  either  civilly  or  criminally.     But  he 
must   have  acted  corruptly  to  subject  himself  to  punishment  by 
information.* 

A  motion  for  an  information,  in  the  King's  Bench,  against  two  R-/.  Young 

&nd  Pitts  1 

justices,  for  arbitrarily,  obstinately,  and  unreasonably  refusing  to   Burr,  jse, 
grant  a  license  to  keep  an  inn  :  no  partiality  or  malice  being  shown, 
the  rule  was  refused.     Lord  Mansfield  declared,  that  this  court 
had  no  power  or  claim  to  review  the  reasons  of  justices  of  peace, 
upon  which  they  form  their  judgments  in  granting  licenses,  by  way 


*  Tt  is  a  general  rule  that  officers,  required  by  law  to  exercise  their 
uidgments^are  riot  answerable  for  mistakes  in  law,  or  mere  errors  pf 
judgment,  without  any  fraud  or  malice.  11  Jr^n*.  K^i.  11  A. 

f  2'J  1 


Jl^,  PEAUE. 


S  Burr.  719. 


1  Bat.  Abi. 
89. 


Perc'iTml  ». 


2  John*.  Cas. 
49. 


3  John  I.  C«s. 

to 


of  appeal  from  their  judgments,  or  overruling  the  discretion  ih- 
trustrd  to  them.  But  if  it  clearly  appears  that  the  justices  have 
been  partially,  maliciously,  or  corruptly  influenced  in  the  exercise 
of  their  discretion,  and  have  (consequently)  abused  the  trust  re- 
posed in  them,  they  are  liable  to  prosecution  by  indictment  or 
information  :  or  even,  possibly,  by  action,  if  the  malice  be  very 
gross  and  injurious.  If  their  judgment  is  wrong,  yet  their  heart 
nod  intention  pure,  God  forbid  that  they  should  be  punished  ! 
And  he  declared  that  he  should  always  lean  towards  favouring 
them,  unless  partiality,  corruption,  or  malice,  shall  clearly  appear. 

The  justice  shall  not  be  liable  to  be  punished  both  ways,  that 
is,  both  criminally  and  civilly  ;  but  before  the  court  will  grant  an 
information,  they  will  require  the  party  to  relinquish  his  civil 
action,  if  any  such  is  commenced.  And  even  in  the  case-of  an 
indictment,  and  though  the  indictment  is  actually  found,  yet  the 
attorney  general  (on  application  made  to  him)  will  grant  a  nolle 
prostqui  upon  such  indictment,  if  it  appear  to  him  that  the  prose- 
cutor is  determined  to  carry  on  a  civil  action  at  the  same  time. 
No  action  lies  against  a  justice  for  indorsing  a  warrant  issued  in 
another  county. 

A  justice  is  liable  to  an  action  on  the  case  at  the  suit  of  a  party 
who  has  been  damnified  by  his  neglect. 

The  following  cases  have  been  decided  in  this  state  as  to  the 
liability  of  a  justice  of  the  peace  in  a  civil  action. 

An  action  of  false  imprisonment  was  brought  for  issuing  an 
execution,  under  the  ten  pound  act,  against  the  body  of  a  defend- 
ant, the  present  plaintiff,  who  was  by  law  privileged  from  im- 
minent, and  who  claimed  his  exemption,  voluntarily  and 
without  the  request  or  authority  of  the  plaintiff  below,  on  which 
the  present  plaintiff  was  taken  and  imprisoned.  The  court  held 
that  a  justice,  in  issuing:  process,  acts  ministerially,  or  as  clerk  of 
the  party,  and  while  acting  in  such  a  character,  he  will  be  justified 
iny  process,  within  his  jurisdiction,  that  may  be  de- 
manded by  the  plaintiff.  But,  in  order  to  charge  the  plaintiff  in 
the  suit,  it  should  appear  that  it  was  really  his  act  ;  it  ought  not  to 
depend  on  the  general  intendment  of  the  law,  that  every  writ  or 
process  is  purchased  by  the  party  in  whose  favour  it  issues.  If  it 
appear-  to  be  the  officious  or  voluntary  act  of  the  justice,  without 
.irect  authority  for  that  purpose,  an  innocent  plaintiff  ought 
not  to  be  implicated.  In  such  a  case  the  justice  assumes  the  res- 
ponsibility of  the  measure,  and  is  liable  for  all  its  consequences. 
No  authority  to  the  justice,  or  demand  of  the  plaintiff,  is  pretended 
in  the  present  case.  The  form  of  the  action  is  proper.  The 
plaintiff  has  been  falsely  imprisoned  by  the  immediate  and  volun- 
tary act  of  the  justice,  and  the  remedy  must  he  by  an  action  of 
false  imprisonment. 

But  where  the  defendant  below,  being  asked  by  the  justice 
whether  execution  should  issue,  did  not  claim  any  exemption 
from  imprisonment,  but  answered,  he  cared  not  how  soon  it 


JUSTICES  OF  THE  PEACE.  227 

issued,  the  sooner  the  better,  for  he  had  put  his  property  out  of 
his  hands ;  whereupon  an  execution  against  the  body  was  issued, 
and  the  defendant  imprisoned,  without  any  direction  from  the 
plaintiff,  who  was  not  present :  the  court  held  that  this  case  did 
not  come  within  the  rule  of  Percival  v.  Jones,  and  that  the  jus- 
tice was  not  liable. 

Trespass  quart  dausum  fregit :  the  plaintiff  was  indicted  before  Casev.  sh*p- 
the  defendant,  a  justice  of  the  peace,  for  a  forcible  entry  and  de-  3  Johns.  Ca». 
tainer.  The  plaintiff  pleaded  to  the  indictment;  but,  before  the  27- 
trial  of  the  traverse,  he  obtained  a  certiorari  from  the  supreme 
court  to  remove  all  the  proceedings,  which  he  delivered  to  the 
defendant,  who,  notwithstanding,  proceeded  to  try  the  issue,  on 
which  the  present  plaintiff  was  found  guilty.  The  defendant, 
thereupon,  issued  a  warrant  of  restitution,  in  the  usual  form,  to 
the  sheriff  of  the  county,  by  virtue  of  which  the  plaintiff  was  turned 
out,  and  one  B.  put  into  possession  of  the  premises.  Per  curiam. 
There  can  be  no  doubt  that  the  delivery  of  the  certiorari  to  the 
justice  superseded  his  powers,  and  rendered  all  subsequent  pro- 
ceedings before  him  corara  non  judir.e,  and  void.  The  act  re- 
quiring bail  in  certain  cases  upon  certioraris,  does  not  apply  to 
the  case  of  an  indictment  before  a  justice,  under  the  statute  of 
forcible  entry  and  detainer ;  for  it  is  not  a  judgment  or  order 
within  the  meaning  of  the  act.  As  the  magistrate  holds  a  court 
of  a  special  and  limited  jurisdiction,  and  proceeded  after  his  power 
was  taken  away  by  the  certiorari,  he  became  a  trespasser,  and  is 
liable  as  such. 

False  imprisonment.     The  defendant  issued  a  warrant  against   WniiswortL 
the  putative   father  of  a  bastard  child,  on  the  application  of  an   ionsh," 
attorney,  who  said  he  was  authorized  to  make  the  complaint  in    ">  Johns, 
behalf  of  the  overseers  of  the  poor  of  the  town  ;  but  on  the  trial 
it  appeared  that  he  had  acted  without  any  authority  from  the 
overseers.     After  the  arrest  of  the  plaintiff,  one  of  the  overseers 
attended  before  the  justice,  and  agreed    that  the   proceedings 
should  go  on   against  the  plaintiff.     Per  curiam.     The  warrant 
issued  without  authority,  because  it  was  not  issued  upon  the  com- 
plaint of  the  overseers  of  the  poor,  or  either  of  them.     The  jus- 
tice, acting  ministerially  in  this  case,  was  responsible  for  issuing 
the    warrant  without  the  application    required  by  the    statute. 
The  subsequent  consent  of  one  of  the  overseers,  that  the  pro- 
ceedings might  go  on,  would  not  deprive  the  plaintiff  of  his  action 
for  the  previous  arrest  upon  a  warrant  irregularly  issued. 

In  any  action  on  the  case,  trespass,  battery,  or  false  imprison- 
ment, brought  against  any  sheriff,  coroner,  justice  of  the  peace, 
mayor,  recorder,  or  alderman,  bailiff,  constable,  marshal,  collec- 
tor, or  overseer  of  the  poor,  and  their  deputies,  for  any  thing 
done  by  virtue  of  their  office,  or  against  any  person  in  their  aid  or 
assistance,  or  by  their  commandment,  doing  any  thing  touching 
their  office,  the  venue  shall  be  laid  in  the  county  where  the  cause 
of  action  arose  :  and  the  defendant  may  plead  the  general  issue 


JUSTICES  OF  THE  PEACE. 

and  give  the  special  matter  in  evidence.  If  on  the  trial  the  plain- 
tiff shall  not  prove  the  cause  of  action  to  have  arisen  in  the  coun- 
ty where  the  venue  is  laid,  the  jury  shall  find  the  defendant  not 
guilty,  without  having  regard  -to  any  evidence  which  the  plaintiff 
jnay  give  touching  the  cause  of  action.  And  if  the  defendant  has 
a  verdict,  or  the  plaintiff  becomes  nonsuit,  or  suffers  a  discon- 
tinuance, the  defendant  shall  have  double  costs.  Sess.  24.  c.  4-7. 
s.  1.  1  R.  L.  155. 

V.  Authority  under  the  laws  of  the  United  States. 

"  For  any  crime  or  offence  against  the  United  States,  the 
offender  may,  by  any  justice  or  judge  of  the  United  States,  or 
by  any  justice  of  the  peace,  or  any  magistrate  of  any  of  the 
United  States,  where  he  may  be  found,  agreeably  to  the  usual 
mode  of  process  against  offenders  in  such  state,  and  at  the  ex- 
pense of  the  United  States,  be  arrested,  and  imprisoned  or  bailed, 
as  the  case  may  be,  for  trial  before  such  court  of  the  United 
States  as  by  this  act  has  cognisance  of  the  offence :  and  copies 
of  the  process  shall  be  returned  as  speedily  as  may  be  into  the 
clerk's  office  of  such  court,  together  with  the  recognisances  of 
the  witnesses  for  their  appearance  to  testify  in  the  case ;  which 
recognisances  the  magistrate,  before  whom  the  examination  shall 
be,  may  require  on  pain  of  imprisonment.  And  if  such  commiti 
ment  of  the  offender,  or  the  witnesses,  shall  be  in  a  district  other 
than  that  in  which  the  offence  is  to  be  tried,  it  shall  be  the  duty  of 
the  judge  of  that  district  where  the  delinquent  is  imprisoned,  sea- 
sonably toissue,and  of  the  marshal  of  the  same  district  to  execute,  a 
warrant  for  the  removal  of  the  offender,  and  the  witnesses,  or  either 
of  them,  as  the  case  may  be,  to  the  district  in  which  the  trial  is  to 
be  had.  And  upon  all  arrests  in  criminal  cases,  bail  shall  be  ad- 
mitted, except  where  the  punishment  may  be  death,  in  which 
cases  it  shall  not  be  admitted  but  by  the  supreme  or  a  circuit 
court,  or  by  a  justice  of  the  supreme  court,  or  a  judge  of  a  district 
court."  L.  U.  S.  Jlct  of  Sept.  24-,  1789.  s.  33. 

As  the  defendant  must  be  committed  or  bailed  for  trial  in  such 
court  as  has  cognisance  of  the  offence,  it  is  necessary  to  observe, 
that  under  the  laws  of  the  United  States,  there  are  in  each  dis- 
trict two  courts  of  original  criminal  jurisdiction  ;  the  circuit  court 
and  the  district  court.  The  district  courts  have,  exclusively  of 
the  courts  of  the  several  states,  cognisance  of  all  crimes  and, 
offences  cognisable  under  the  authority  of  the  United  States, 
committed  within  their  respective  districts,  or  upon  the  high 
seas  ;  where  no  other  punishment  than  whipping,  not  exceeding 
thirty  stripes,  a  fine  not  exceeding  one  hundred  dollars,  or  a  term 
of  imprisonment  not  exceeding  six  months,  is  to  be  inflicted. 
The  circuit  courts  have  exclusive  jurisdiction  of  all  crimes  and 
offences  cognisable  under  the  authority  of  the  United  States,  ex- 
cept where  it  is  otherwise  provided  by  the  laws  of  the  United 


JUSTICES  COURTS.  229 

States,  and  concurrent  jurisdiction  with  the  district  courts  of  the 
crimes  arid  offences  cognisable  therein.      L.  U.  S,  Jict.  Sept.  '24, 

nay.  s.  y.  n. 


JUSTICES  COURTS. 


I.   Civil  jurisdiction  of  a  justice. 
II.  Process,  and  how  to  be  served. 

III.  Appearance. 

IV.  Discontinuance. 
V.  Declaration. 

VI.  Plea,  issue,  and  default. 
VII.  Adjournment. 
VIII.  Set-off. 

IX.  Plea  of  a  former  action. 
X.  Plea  of  title. 

XI.   Conviction  under  the  excise  or  tavern  act. 
XII.   Trial  and  its  incidents* 

XIII.  Verdict,  and  nonsuit. 

XIV.  Judgment. 
XV.  Execution. 

XVI.  Proceedings  against  joint  debtors. 
XVII.   Certiorari. 

XVIII.  Justices  excused  and  excluded  from  acting. 
XIX.  Justices  certificate,  when  evidence. 
XX    Attachment  against  absent  and  absconding  debtors, 
XXI.  Costs. 
XXII.  Subpoenaing  witnesses  before  arbitrators. 

I.  Civil  jurisdiction  of  a  justice. 

"  All  actions  of  debt,  detinue,  covenant,  trespass  on  the  case.. 
and  trespass,  including  trespass  on  any  lands  or  other  real  estate, 
wherein  the  balance  due,  or  the  damages  or  thing  demanded, 
shall  not  exceed  twenty- five  dollars  ;  and  also  all  penalties 
not  exceeding  the  said  sum,  imposed  by  the  act,  entitled,  '•  an 
act  to  lay  a  duty  on  strong  liquors,  and  for  regulating  inns  and 
taverns,"  and  also  all  suras  of  money  not  exceeding  twenty  - 
five  dollars,  to  be  sued  for  and  recovered  in  any  court  of  re- 
cord, by  virtue  of  any  statute  of  this  state,  as  well  by  and  in  favour 
of  executors  and  administrators  as  others,  and  as  well  again«t 
attornies  and  other  officers  of  any  court  of  justice  of  this  state 
(except  during  the  sittings  of  such  court)  as  others,  shall  be  cog- 
nisable before  any  justice  of  the  peace  of  any  city  or  county  ;  (the 
city  and  county  of  New  York  excepted,)  and  every  such  justice 
is  hereby  authorised  to  hold  a  court  for  the  trial  of  all  such  ac- 
tions, and  to  hoar,  try  and  determine  the  same,  according  to  law  anri 
equity,  and  is  hereby  vested  with  all  such  power,  for  the  purpose. 


JUSTICES  COURTS. 

aforesaid,  as  ia  usual  in  courts  of  record  in  this  state,  and  shall  signal! 
process  to  be  issued  by  him  :  Provided  always,  That  no  ju  ;tice  of 
the  peace  shall  have  cognisance  of  any  action  wherein  tti!j  ^«-o- 
ple  of  this  state  shall  be  concerned,  or  where  the  title  to  land  shall 
in  nny  wise  come  in  question;  (except  as  aforesaid,)  nor  of  any  action 
of  assault,  battery,  or  imprisonment,  or  of  slander,  or  malicious  pro- 
secution ;  nor  of  matters  of  account,  where  the  sum  total  of  the 
accounts  of  both  parties,  proved  to  the  satisfaction  of  the  justice, 
shall,  in  the  whole,  amount  to  two  hundred  dollars  ;  nor  of  any 
action  to  be  brought  against,  an  executor  or  administrator,  for  any 
debt  or  demand  due  from  the  estate  of  any  testator  or  intestate." 
Act  for  the  recovery  of  debts  to  the  value,  of  twenty-five  dollars.  Sess. 
3(j.  c.  53.  s.  1.  I  R.  L,  337. 

chaiev.Hale,        An  action  of  trespass  on  the  case  was  brought  for  enticing  away 
.tii'.  '   the   wife  of  the  plaintiff,  and  it  was  hold,  on  ccr/torart,  that  such 

an  action  would  li«  before  a  justice.  Per  curiam.  The  action 
is  trespass  on  the  case,  jurisdiction  of  which  action  is  expressly 
given  to  justices  of  the  peace:  and  the  proviso  in  the  statute, 
taking  away  their  jurisdiction  in  certain  actions,  does  not  extend 
to  cases  like  the  present. 

Hence  it  might  be  inferred,  that  if  the  form  of  action  had  been 
trespass  for  criminal  conversation,  or  seducing  away  the  wife,  in 
which  force  and  an  assault  are  implied,  the  wife  being  considered 
as  having  no  power  to  consent,  the  case  would  have  fallen  with- 
in the  exception  as  to  actions  of  assault  and  battery. 

-Ijnsenr.  \n  action  of  debt,  for  the  escape  of  a  prisoner  in   execution, 

hu'rgif,"  was  brought  in  a  justice's  court  against  a  sheriff.  The  court  said, 
ajohns.Rep.  tne  action  fai|s  within  the  denomination  of  actions  cognisable  in 
justices  courts.  There  is  nothing  special  in  the  proceedings  or 
judgment  to  be  given  which  can  take  away  the  jurisdiction.  The 
magistrate  is  competent  to  afford  the  sheriff  all  the  relief  to  which 
he  would  be  entitled  in  any  other  court,  relative  to  staying  pro- 
ceedings against  him.  And  there  can  be  no  reason  why  juris- 
diction should  be  denied.* 

Caitillv.  A  justice  has  jurisdiction  by  the  act  to  the  amount  of  two  hun- 

i  Johns.  Cas.   dred  dollars,  provided  the  balance  claimed  do  not  exceed  twenty- 
Bovditchv      '*lve  dollars.     Regularly,  the  plaintiff  ought  to  state  in  his  declara- 
saiisbury,       tion  the  credit,  to  reduce  it  to  that  sum  ;  but  if  he  state  a  debt  or 
»*>hns.Rep.  Demand  to  the  amount  of  two  hundred  dollars,  but  concludes  to 
his  damage  of  twenty-five  dollars  only,  it  is  an  objection  of  form, 
and  not  a  substantial  error,  for  which  the  judgment  will  be  re- 
versed. 

storms  v.  When  A.  agreed  with  B.  to  remove  his  fence  so  as  to  open  a 

10  j'diius.        certain  road  to  its  original  width,  and  B.  promised  to  pay  to  A. 
Rt'P- 109<       therefor  ten  dollars  and  fifty  cents,  and  an  action  was  brought  by 


*  Trespass  on  the  case  is  the  proper  form  of  action  for  an  escape  upon 
mesne  process. 


JUSTICES  COURTS.  231 

A.  before  a  justice  to  recover  the  money,  it  was  held  that  this 
agreement  did  not  concern  the  title  to  land,  and  that  the  justice 
had  jurisdiction. 

A  corporation   cannot  be   sued  before  a  justice.     The  pro-  ^"'.'(x'ux. 
visions  of  the  act,  both  as  to  the  first  process  and  the  execution,  Si)tuie 
preclude  the  construction  that  a  corporation  can  be  sued  before  a   ^'.'lam','  V' 
justice  of  the  peace.  s  Johns.  Hep. 

But   where  a  corporation  is  plaintiff,  it  has  been  held  that  the   Hotchkiss  v. 
action  is   sustainable.     The  court  said:   There   are  insuperable   Rciigiom Sn- 

...  .  i  •    i      cifty   ut  Ho- 

difficulties  in  the  way  of  a  suit  against  a  corporation,  among  wuicli  mc 
it  is  sufficient  to  mention,  that  the  justice  has  no  process  provided  Jj 
by  the  act  to  compel  a  corporation  to  appear.  But  when  they 
are  plaintiffs,  they  can  constitute  an  attorney  to  appear  fur  them, 
and  conduct  the  suit.  The  only  objection  to  the  cognisance  of 
a  suit  by  a  corporation,  is  to  the  form  of  the  execution  provided 
by  the  statute,  which  is  to  issue  against  the  goods  and  chattels, 
and  in  default  of  the  goods  and  chattels,  against  the  body  of  the 
party  who  may  not  be  specially  exempted  ;  and  if  the  plaintiff  fails 
in  the  suit,  the  defendant  is  entitled  to  the  same  process  for  his 
costs,  and  for  the  balance  which,  in  cases  of  set-off,  may  have 
been  found  in  his  favour.  The  execution,  so  far  as  respects  the 
body,  could  not  be  executed  against  the  corporation,  nor  could 
such  an  execution  issue  in  any  other  court.  The  defendant 
then  would  have  all  the  remedy  that  could  be  afforded  him  if  lie 
was  sued  in  a  higher  court.  This  objection,  therefore,  does  not 
seem  sufficient  to  destroy  the  jurisdiction  of  the  justice.  If  the 
judgment  then  be  in  favour  of  the  defendant,  the  execution  can 
issue  in  the  usual  form  ;  and  it  would  be  effectual  as  against  the 
goods  and  chattels  of  the  corporation,  and  could  only  be  inopera- 
tive as  to  the  residue  of  it.  The  defendant  would  still  have  ade- 
quate remedy  upon  his  judgment,  and  all  that  could  be  afforded 
if  express  jurisdiction  were  given  in  the  case. 

II.  Process,  and  how  to  be  served. 

"  The  first  process  under  this  act,  against  freeholders  and  in- 
habitants having  families,  (except  as  hereafter  is  otherwise  direct- 
ed,) shall  be  by  summons,  directed  to  any  constable  in  the  county 
where  the  defendant  dwells,  commanding  him  to  summon  the  de- 
fendant to  appear  before  such  justice,  at  a  time  and  place  to  be 
expressed  in  such  summons,  not  less  than  six,  nor  more  than 
twelve  days  from  the  time  of  issuing  such  summons,  to  answec 
the  plaintiff  of  the  plea  in  the  same  summons  to  be  mentioned, 
which  summons  shall  be  served  at  least  six  days  before  the  time 
of  appearance  mentioned  therein,  by  reading  the  same  summons 
to  the  defendant,  and  delivering  a  copy  thereof,  (if  required,)  it 
such  defendant  shall  be  found,  and  if  not,  by  leaving  a  copy  there 
of  at  liis  or  her  house  or  place  of  abode,  in  the.  presence  of  some 
one  of  the  family,  of  suitable  age  and  dhcreMnn.  vrho  ?w  - 


•232  JUSTICES  COURTS. 

formed  of  its  contents  ;  and  the  constable  serving  such  summons 
shall,  upon  the  oath  of  his  office,  return  thereupon  the  time  and 
manner  he  executed  the  same,  and  sign  his  name  thereto  ;  and  in 
case  the  defendant  does  not  appear  at  the  time  and  place  ap- 
pointed in  such  summons,  and  it  shall  appear  by  the  return  en- 
dorsed thereon,  that  the  summons  was  personally  served  ;  or  if  the 
defendant  does  appear  on  the  return  of  such  summons,  the  said 
justice  shall  then,  or  at  such  other  reasonable  time  as  he  may  ap- 
point, not  exceeding  six  days  thereafter,  proceed  to  hear  and  ex- 
amine the  proofs  and  allegations  of  the  parties,  and  within  four 
days  thereafter  give  judgment  thereon,  agreeable  to  law  and 
equity,  with  costs  of  suit;  but  if  such  summons  was  not  served 
personally,  and  the  defendant  does  not  appear  at  the  time  and 
place  appointed  in  such  summons,  nor  show  good  cause  for  not 
appearing,  then  the  said  justice  shall  issue  another  summons  or 
warrant,  against  such  defendant,  at  his  option  ;  but  no  person 
shall  be  proceeded  against  by  summons  out  of  the  county  in 
which  he  or  she  residt  s  ;  and  whenever  any  parties  agree  to  join 
an  issue  without  proces?,  the  justice  shall  proceed  to  try  the 
same  as  if  process  bad-issued."  s.  2. 

"  In  all  cases  where  a  warrant  shall  issue,  the  constable  shall 
he  commanded  to  take  the  defendant,  and  bring  him  or  her  forth- 
with before  such  justice,  to  answer  the  plaintiff  of  the  plea  in  the 
same  warrant  to  be  mentioned,  and  upon  the  defendant  being 
brought  before  such  justice,  he  shall  proceed  to  hear  and  deter- 
mine the  cause  in  manner  aforesaid  :  and  if  the  justice  who  issu- 
ed such  warrant  shall,  on  the  return  thereof,  be  absent,  or  unable 
to  hear  and  try  the.  cause,  the  constable  serving  the  same  shall 
take  the  defendant  before  the  next  justice  of  the  city  or  county, 
who  shall  take  cognisance  of,  and  hear,  try  and  determine  the 
cause,  as  if  the  warrant  had  been  issued  by  him."  s.  3. 

"  If  any  person,  or  his  or  her  attorney,  applying  for  process, 
shall  prove  to  the  satisfaction  of  any  justice,  that  the  defendant  is 
about  to  depart  from  the  county,  or  that  the  plaintiff  will  be  in 
danger  of  losing  his  or  her  debt  or  demand,  unless  the  process 
against  such  defendant,  being  a  freeholder  or  inhabitant,  having  a 
family,  shall  be  by  warrant,  such  justice  shall  thereupon  issue  a 
warrant  as  above  directed;  and  if  the  person  applying  for  a  war- 
rant be  a  non-resident,  and  tenders  to  any  justice  security  for  the 
payment  of  any  sum  which  may  be  adjudged  against  him.  he  shall 
be  entitled  to  have  a  warrant  hi  his  favour  against  any  person  in 
the  county  in  which  such  justice  may  reside  ;  and  on  the  de- 
fendant being  brought  before  such  justice  on  such  warrant,  he 
.ihall  then,  or  within  three  days  thereafter,  unless  the  parties 
agree  to  allow  a  longer  time,  proceed  to  hear,  try  and  deter. ..ine 
.-such  cause  in  the  manner  herein  before  directed  ;  but  in  all  other 
<  rises  on  the  leturn  of  a  warrant,  if  either  of  the  parties  shall  re- 
quire a  longer  time  to  try  the  cause,  and  will,  if  required,  give 
sufficient  security  to  appear  and  stand  trial  on  such  other  day  as 


JUSTICES  COURTS.  233 

shall  be  appointed,  then  such  justice  shall  adjourn  the  trial  of  such 
cause  to  sumo  future  day,  not  less  than  three,  nor  more  than 
twelve  days,  unless  the  parties  and  justice  shall  otherwise  agree; 
and  if  the  adjournment  is  required  hy  the  defendant,  he  shall 
give  sufficient  security  to  appear  on  the  day  to  which  the  cause  is 
adjourned,  and  in  default  of  such  appearance,  to  pay  the  debt,  or 
damages  and  costs,  if  judgment  shall  be  given  against  him  or  her; 
and  for  want  of  such  security,  the  justice  shall  proceed  to  trial 
without  an  adjournment  ;  and  the  constable  serving  such  war- 
rant shall  detain  the  defendant  in  his  custody  until  discharged 
by  due  course  of  law:  Provided,  That  in  all  cases  where  any  ap- 
plication for  a  warrant  shall  be  made,  as  provided  for  in  this  sec- 
tion, the  person  thus  applying  shall,  by  affidavit  or  orally,  on  oath, 
state  the  facts  and  circumstances  within  his  knowledge,  showing 
the  grounds  of  his,  her  or  their  application,  whereby  the  justice, 
may  better  judge  of  the  necessity  and  propriety  of  issuing  such 
warrant."  s.  4. 

The  issuing  the  summons  or  warrant  is  the  commencement  of  B,°yer  v~ 

Morgan, 

the  action.  a  CaiiuV 

Process  improperly  issued,  as  whore  a  warrant  is  issued  when    Da?  v*  wi!- 
the  defendant  ought  only  to  be  summoned,  or  a  defective  process,   **?!•._ 
is  cured,  if  no  objection  be  made  to  it  at  the  time,  but  the  defen-   Hep'.""*, 
dant  pleads  and  goes  to  trial. 

In  an  action  for  a  false  imprisonment  it  appeared  that  the  plain-  Curryy. 
tiff  was  a  man  having  a  family,  and  was  arrested  on  a  warrant  f,1  j'0Kh'f,'.. 
issued  from  a  justice's  court,  without  oath,  and  was  detained  for  B«j>.4'«. 
about  half  an  hour.  After  his  arrest,  the  plaintiff  said  that  he  was 
a  man  with  a  family  ;  upon  which  the  defendant,  to  avoid  the  dan- 
ger of  being  non-suited  in  the  court  below,  provided  the  plaintiff's 
declaration  was  true,  discharged  him  from  the  arrest.  The  jury 
found  a  verdict  for  the  plaintiff"  for  nominal  damages,  subject  to  the 
opinion  of  the  court,  which  was  delivered  by  YATES  J.  IT,  ap- 
pears that  the  plaintiff  was  an  inhabitant  of  the  town  of  Milford, 
in  the  county  of  Ot?ego,  the  same  county  in  which  the  justice 
and  the  defendant  resided.  The  imprisonment  in  this  case  was 
illegal,  and  the  party  is  entitled  to  a  remuneration  for  the  injury 
sustained.  To  authorise,  the  issuing  of  a  warrant  in  the  first  in- 
stance, the  defendant  ought  to  have  proved  to  the  satisfaction  of 
the  justice,  that  the  plnintiff  was  about  to  depart  from  the  county, 
or  that  he  was  in  danger  of  losing  his  debt.  This  was  not  done, 
and  the  justice  proceeded  against  the  plaintiff  as  an  inhabitant 
having  no  family.  From  the  facts  in  the  case  it  is  evident  that 
those  proceedings  were  had  on  the  suggestion  and  ;.t  the  instance 
of  the  defendant,  in  whose  favour  the  process  issued,  which  must 
be  deemed  to  have  been  done  at  his  peril.  H/j  ought  therefore 
to  be  responsible.  It  might,  perhaps,  have  been  otherwise,  if  l(u- 
justice,  as  the  agent  of  the  defendant,  had  voluntarily  and  officious- 
ly issued  the  warrant,  without  any  direct  authority  for  that  pur- 
pose. T!i;  ".-e  implicated  the  fJefcndap.t.  an/l  tire 


JUSTICES  COURTS 

justice  in  sutli  case  might  be  considered  as  having  assumed  the 
responsibility  of  the  measure  adopted  by  him,  and  of  course  ought 
to  be  held  liable  for  the  consequences.  But  the  officer  who  ex- 
ecuted the  warrant  declared  that  he  took  the  plaintiff  at  the  in- 
stance of  the  defendant.  He  therefore  was  not  only  acquainted 
with  the  issuing  of  the  warrant,  but  directed  the  service  of  it  in 
the  manner  stated,  so  that  the  remedy  for  the  injury  sustained  is 
properly  sought  from  him.  The  rule  is  strict,  that  in  a  court  of 
special  and  limited  jurisdiction,  the  party  becomes  a  trespasser 
who  extends  the  power  of  the  court  to  a  case  to  wliich  it  cannot 
lawfully  be  extended.* 

3Uiis  \.  Keu-       Any  constable  of  the  county  may  serve  process  in  any  part  ot 

"fohtu.  Rep.   the  county. 

5a3'  "  When  any  process  shall  be  issued  by  any  justice,  by  virtue  ot 

this  act,  the  constable,  to  whom  such  process  shall  be  directed, 
shall  proceed  agreeably  to  this  act,  and  execute  such  process  in 
his  own  proper  person,  unless  the  justice  who  issues  such  process 
shall,  at  the  request  of  the  plaintiff,  judge  it  expedient  to  depute 
some  other  proper  person,  who  will  voluntarily  undertake  to  ex- 
ecute the  same  w  ithout  fee  or  reward  ;  but  no  person  shall  be  so 
deputed  to  impannel  or  summon  any  jury."  6.  15. 

III.  Appearance, 

"  No  justice  of  the  peace  or  constable,  serring  the  original  or 
jury  process  in  any  cause,  shall  be  permitted  to  appear  and  advo- 
cate for  either  party  in  any  such  cause."  s.  27. 

fhuiney  v.  Where,  on  the  return  of  the  summons,  the  defendant  and  his 
•/Johns.  Rep.  attorney  appeared,  and  the  constable,  who  served  the  summons, 
r'itile  v  Ba  said  he  would  appear  and  answer  for  the  plaintiff,  if  the  defendant 
k«.-r,  and  his  attorney  would  take  no  advantage  of  it,  to  which  they 

S54.ins  cp'  agreed,  and  the  constable  then  presented  and  declared  upon  the 
note  :  and  the  defendant  pleaded  non-assumpsit,  and  the  cause 
was  then  adjourned  for  trial ;  it  was  held  that  the  constable  who 
served  the  process  did  not  appear  and  advocate  for  the  plaintiff 
within  the  meaning  of  the  act.  The  statute  refers  to  an  appear- 
ance at  the  trial  of  the  cause.  He  merely  appeared  for  him  to 
present  the  note  to  the  justice,  and  did  not  appear  at  the  trial. 

As  to  the  appearance  of  an  infant  plaintiff  or  defendant,  see 
INFANT. 

IV.  Discontinuance. 

If  the  plaintiff  does  not  appear  on  the  return  of  the  process,  il 
;s  a  discontinuance  ;  so,  if  the  justice  unreasonably  delays  to  at- 
tend and  open  his  court. 

*  See  further  on  this  subject  the  cases  of  Ptrcival  v.  Jcr.es  and  flier?  A 
Morgan,  cited  JUSTICES  ov  THE  PEACE,  IV. 


JUSTICES  COURTS.  235 

A  suit  was  commenced  on  a  promissory  note,  by  warrant,  on  g1^™|';"e  and 
ihe  return  of  which  neither  the  plaintiff  nor  any  person  in  his  he-   siu-ii, 
half  appeared.     The  note,  on  which  was  indorsed  a  request  by  the  s^"1''1'^ 
defendants  to  enter  judgment  against  them,  was  delivered  to  the 
justice,  on  which  the  justice  gave  judgment  against  the  defemkuit.- 
Per  curtain.     This  judgment  cannot    be   supported.     The  pro- 
ceedings were  contrary  to  the  established  rules  of  law  applicable 
to  justices  courts.     The  plaintiff  not  appearing  himself,  nor  any 
person  for  him,  was  a  discontinuance  of  his  cause,  and  the  justice 
had  no  authority  to  enter  judgment     Although  the  case  is  not 
precisely  within  that  of  Martin  v.  Moss,  (see  this  case,  post,  XIV.) 
here  being  process  issued  against  the  defendants,  still  it  cornea 
within  the  principle  of  that  case,  because,  by  the  default  of  the 
plaintiff  in  not  appearing,  his  cause  was  out  of  court,  and  of  course 
no  suit  was  depending. 

After  issue  joined,   the  justice  adjourned  the  cause  until  10  Gro'tlnt 
o'clock  on  another  day.     The  defendant  appeared  at  the  hour  5J.ihns.Rei> 
;tnd  place  appointed,  and  being  told  that  the  justice  could   not  353< 
oome  until  12,  waited  near  three  hours,  and  finding  the  justice  did 
not  attend,  went  away;  and  afterwards,  just  before  1  o'clock,  P. 
M.  the  justice  came,  and  the  plaintiff  being  present,  the  defendant 
was  exiled,  and  not  appearing,  the  justice  proceeded  in  the  cause, 
and  gave  judgment  against  him  by  default.     Per  curiam.     The 
defendant  below  waited  a  reasonable  time,  and  the  cause  became 
discontinued  by  the  delay  of  the  justice  to  attend  ;  for  it  was  an 
unreasonable   delay.     The   defendant    below,   during  the  three 
hours  he  waited,  was  told  that  the  justice  had  said  he  could  not 
come  until  12  o'clock,  and  he  waited  near  an  hour  after  that  time. 
The  judgment  below  must  be  reversed. 

Where  the  justice  did  not  open  his  court  for  more  than  two  jl^ui-Ln 
hours  after  the  time  appointed  in  the  summons,  and  then  ad-    iiJuiins. 
journed  the  cause  to  another  day,  when  he  heard  it  cxparte;  it  was     tf'4( 
held  that  this  delay  and  the  subsequent  adjournment  amounted  to 
a  discontinuance  of  the  cause. 

An  issue  had  been  joined  in  a  justice's  court,  on  a  plea  of  mis-  wilder. 

..     J  Dunn, 

nomer,  and  the  cause  was  adjourned  until  another  day,  at  two  iuoiin«. 
o'clock  ;  about  three  o'clock  of  that  day  the  defendant  appeared  Rel''4*9' 
with  her  attorney,  and  moved  for  a  nonsuit,  because  the  plaintiff 
did  not  appear  ;  upon  which  the  justice  was  informed  by  a  witness 
for  the  plaintiff,  that  the  plaintiff  was  near  at  hand,  upon  his  way 
to  court.  The  justice  waived  a  decision  on  the  motion  for  a  nou- 
•niit.  In  a  few  minutes  after  the  motion  was  renewed  ;  the  jus- 
tice told  the  defendant  she  must  wait  a  little  longer,  and  she  then 
went  out  of  court,  but  remained  near  at  hand.  The  attorney  con- 
tinued with  the  justice,  and  about  a  quarter  before  four  the  plain- 
tiff arrived.  The  parties  were  then  called  ;  the  attorney  for  the 
defendant  refused  to  appear,  and  the  cause  was  heard  ex  parte, 
and  judgment  given  for  the  plaintiff.  The  court  held,  lhat  as 
there  was  ground  -to  presume  that  the  defendant  had.  no  bona> 


136  OURTS. 

Jide  intention  of  defending  the  suit,  and  as  her  attorney  was  present 
during  the  trial,  the  delay  was  not,  under  all  circu:  -o  un- 

reasonable as  to  work  a  discontinuance. 

An  irregular  adjournment  amounts  to  a  discontinuance;  as  to 
which,  vide  post,  VII. 

V.  Didaration. 

ptlld^als  ^e  declaration  is  a  specification,  in  a  methodical  and   legal 

form,  of  the  circumstances  which  constitute  the  plaintiff's  cause  of 
action. 

But  in  a  justice's  court  technical  nicety  is  not  required  in  the 
pleadings:  the  declaration  should,  however.  '•  rmal,  as  to 

show  the  cause  of  action,  or  it  will  be  fata!  on  ctrtiorari. 
Hangfctan  T.        So.  where  the  declaration,  as  appeared  from  the  return  to  the 
i  CaiSv        cerfiorort,  stated  that  the  defendant  "  privily,  wilfully,  and  mali- 
Rep.48;.        ciously.  by  ctrtain  conduct,  damaged  the  plaintiff  to  the  amount  of 
twenty-five  dollars."  it  was  held  bad.     The  court  said  :   It  ought 
to  have  stated  not  only  the  injury,  but  bow  it  arose.     l*nl< — 
cause  of  action  be  stated  with  certainty,  it  is  impossible  for  us  to 
know  whether  the  justice  had  jurisdiction  or  not.     This  re: 
may,  for  aught  that  appears,  have  been  slander,  or  for  an  r. 
and  battery,  or  for  some  other  matter,  not  cognisable   before  a 
>       i^oes  it  appear  by  any  p^rt  of  the  n  ne   of 

the  testimony  being  returned,}  what  kind  of  action  was  proved  by 
the  witot 

Kintrr.  The  declaration  in  the  court  below  stated,  that  the  plaintiff  "let 

scaiao1  the  defendant  have  a  certain  bay  horse  and  a  note  of  hand  »l 
Hey.  S3.  teen  dollars:  in  consideration  of  which  the  defendant  let  the  plain- 
tiff have  a  certain  sorrel  horse,  which  the  defendant  warranted  to 
be  a  sound  and  good  working  hor?e,  whereas  he  was  totally  unfit 
for  all  manner  of  business,  to  the  damage."  k<-.  The  declaration 
•was  held  sufficient  Tl.-  3:  It  has  been  obj. 

the  word  let  imports  a  bailment:  and  that  if  so,  the  unsoundness 
of  the  horse  was  immaterial,  and  not  prejudicial  to  the  plaintiff 
below.  In  reviewing  the  proceedings  of  magist  court 

has  decided  that  they  will  not  require  of  the  parties,  who  : 
be  presumed  unversed  in  the  forms  of  law,  technical  nicety  or 
precision.     If  the  matter  stated  show  a  good  ground  of  ac- 
tion, it  is  all  that  is  requisite.     To  test  pr> 

courts,  hy  the  rules  of  pleading  adopted  here,  would  be  produc- 
tive of  the  greatest  injustice.     The  act  requires  of  us  to  pronounce 
judgment  as  the  very  right  of  the  case  shall  appear,  without  re- 
gard to  o  ;:r.  in  mere  matters  of  form.     In  common  par- 
lance, •'/«/,"  as  used  here,  means  exchange,  and  so  the  coi;: 
understand  it.     With  respect  to  the  proceedings  of  the   ' 
himself,  the  court  will  require  a  compliance  on  his  part  with  the 
forms  prescribed  by  the  statute.     If  these  have  been  departed 
from,  and  are  not  waived  or  cured  by  the  statute 
proceeding*  cannot  be  supported. 


JUSTICES  COURTS.  237 

»  A  declaration  "for  damages,  on  account  of  the  defendant's  not  ^^rtb 

fulfilling  a  contract  for  a  certain  lot  of  lease  land,  lying"  in  a  cer-  3  Caii«v 

tain  place,  is  sufficient.  Rtp-  219* 

Where  tin-  plaintiff  declares  generally,  and  at  the  same  time  Ei>r'  v- 

hands  the  justice  a  hook  account,  the  account  will  be  taken  as  a  3  cuinei 

part  of  the  declaration.  ^'tbit'cae, 

That  the  defendant  did  sell  to  A.  B.  and  receive  pay  for  one  pint  m  length, 

qf  whiskey,  which  was  drank  in  the  defendant's  house,  who  had  no  Taverns  \i 

license,  &.c.  is  a  sufficient  charge  of  the  offence.*  Piek.-n. 

There  must  not  be  a  variance  between  the  evidence  and  the  2  ji.hn».Rep. 

declaration  ;   neither  can  judgment  be  given  for  more  than  the  J^' 

plaintiff  claims  by  his  declaration  :  either  of  these  errors  would  be  T.  Borland, 

fatal  on  certiorari.  Re'l'wj. 

The  plaintiff  below  declared  in  assumpsit  for  twenty-five  dol-  M'NPII  v. 

,.  _,*  '  Seoffieltl, 

tars,  difference  agreed  to  be  paid  by  the  defendant,  on  an  exchange  3  Johns.  Rep. 

of  horses  between  him  and  the  plaintiff:  and  also  for  twenty-five  436% 
dollars  for  fraud  in  the  exchange  of  horses,  and  concluded  to  the 
damage  of  twenty-five  dollars.  Per  curiam.  It  is  objected  that 
a  count  on  contract,  and  fraud  could  not  be  joined  in  the  same  de- 
claration. This  would  no  doubt  be  a  valid  objection,  on  a  motion 
in  arrest  of  judgment  here,  where  the  court  are  judges  of  the  law, 
and  the  jurors  decide  on  the  facts:  but  in  proceedings  before  jus- 
tices of  the  peace,  the  jury  may  decide  both  the  law  and  the  fact. 

Again,  where  the  paity  makes  no  objection  to  the   pleadings  at  Ely  v. van 

the  time,  but  consents  to  go  to  trial  upon  them,  we  have  repeated-  f  cahW 

ly  decided  that  he  shall  not  avail  himself  of  any  defects  in  the  Rei>-  318- 
form  of  pleading,  which  may  appear  on  the  return  to  Ihe  certiorari. 

After   pleading,   the    defendant  cannot    take   advantage    of  a  DHyv.  wil- 

variance   between  the  process  and  declaration.     So,  too,  if  he  sTcaimV 

neglect  to  appear,  and  judgment  goes  by  default.  Kep.  134. 

So,  where  in  an  action  before  a  justice,  the  plaintiff  declared  by  Moreboo'ie, 
a  different  name  from  the  one  mentioned  in  the  summons,  but  ;^?hl|s- Rep- 
ine identity  of  the  person  was  ascertained  ;  the  defendant  did  not  Ford  v. 
appear,  but  suffered  judgment  by  default,  and  it  was  held,  that  he  fjotnT'cas. 
should  have  appeared  and  taken  advantage  of  the  variance  before  243< 
the  justice,  but  could  not  avail  himself  of  it  afterwards. 

A  statement  of  matter  not  actionable,  but  for  which  no  damages  EIr  v-  v«n 

Bt-iireii, 

appear  to  have  been  given,  is  not  error.  scain.v 

Where  the.  plaintiff  declared  in  assumpsit  for  work  and  labour,  of/.',,"8' 

and  judgment  was  given  against  the  defendant,  who,  on  certiorari,  Mor<-hontc, 

objected  that  the  declaration  wanted  an  averment  that  the   work  ^J60<lins-ReP- 
was  actually  performed,  it  was  held  that  after  judgment  the  aver- 
ment would  be  intended  to  have  been  supplied  by  proof. 

In  an  action  before  a  justice,  the  plaintiff  commenced  by  sum-  **k",T' 

mons  in  trespass  on  the  case,  and  declared,  for  that  the  hogs  of  the  10  Johns. 

Rip.  240. 


Further  as  to  declarations  in  qui  tam  actions,  see  ACTIONS 


233  JUSTICES  COURTS 

defendant  had  broken  into  the  inclosure  of  the  plaintiff  on  such 
a  day,  and  destroyed  his  corn,  &tc.  and  also  for  that  the  de- 
fendant on  that  day,  had  broken  open  the  pound,  &c.  The  de- 
fendant made  several  objections  to  the  plaintiff's  demand  and  pro- 
ceedings, which,  by  consent  of  the  parties,  were  postponed  to 
the  trial,  when  the  justice  consented  to  take  into  consideration 
any  objections  the  defendant  might  urge.  It  appeared  that  the 
summons  was  against  B.  and  his  wife  ;  but  it  was  not  served  upon 
her,  nor  did  she  appear,  and  a  nolle  prosequi,  as  to  her,  was  entered 
by  the  plaintiff,  and  she  was  not  named  in  the  subsequent  pro- 
ceedings in  the  cause.  On  the  trial,  the  defendant  objected  to 
the  plaintiff's  proceeding  against  him  alone,  without  his  wife,  and 
the  objection  was  overruled.  The  defendant  then  objected  to 
the  variance  between  the  action  stated  in  the  summons  and  the 
plaintiff's  declaration ;  the  one  being  trespass  on  the  case,  and 
the  other  trespass ;  which  objection  was  also  overruled  by  the 
justice.  The  jury  found  a  verdict  for  the  plaintiff.  Per  curiain. 
There  was  no  well  founded  objection  to  joining;  a  count  for  the 
trespass  damage  feasunt,  with  the  count  for  the  pound  breach 
or  rcscous,  and  it  is  usual  to  join  them.  If  the  variance  between 
the  summons  and  declaration  would  have  been  fatal,  (which  we 
do  not  concede,)  because  the  one  was  trespass  on  the  case,  and 
the  other  trespass ;  yet  the  objection  was  waived  by  the  defen- 
dant, when  he  consented  to  postpone  it  until  the  jury  were 
sworn  on  the  trial.  The  plaintiff  also  had  a  right  to  discontinue 
the  action  against  the  wife,  and  proceed  against  the  husband  alone, 
The  objections  made  by  the  defendant  were  frivolous  in  their  na- 
ture, and  went  merely  to  matters  of  form,  which  are  always- 
Liberally  regarded  in  proceedings  before  a  justice. 


VI.  Plea,  issue,  and  default, 
3 Black.  Pleas  are  of  two  sorts  ;  dilatory  pleas,  and  pleas  to  the  action. 

Coin    301 

Dilatory  pleas,  and  pleas  in  abatement,  are  such  as  tend  merely  to 
delay  and  put  off  the  suit,  by  questioning  the  propriety  of  the 
remedy,  rather  than  by  denying  the  injury  :  pleas  to  the  action 
are  such  as  dispute  the  very  cause  of  suit.      Pleas  in  abatement 
are  either  to  the  jurisdiction  of  the  court,  or  to  the  disability  oi 
Pteftd/5.2S.    tue  plaintiff,  by  reason  whereof  he  is  incapable  to  commence  or 
continue  the  suit,  as  that  he  is  an  alien-enemy,  a  fictitious  person, 
Hep.  101.        an  infant,  a  feme-covert,  fcc.  or  a  misnomer;  or  that  proper  par- 
ajohns.  Cas.  tjes  have  not  been  made  plaintiffs  or  defendants,  or  that  improper 
i Johns. Rep.  parties  have  been  joined  in  the  action;  but  in  actions  arising  on 
2  j'oims. Hep,  contract,  if  it  appear  on  the  trial  that  all  parties  legally  interested 
have  not  joined  in  bringing  the  action,  it  will  be  a  cause  for  non- 
suiting the  plaintiff;  so  too  the  plaintiff  is  bound  to  show  a  joint 
liability  in  all  the  defendants,  or  be  nonsuited;  but  in  actions  for 
tort'-:,  one  defendant  may  be  found  guilty  and  auolhc;-  i 


JUSTICES  COURTS.  239 

A  plea  in  abatement  cannot  be  pleaded  after  a  plea  to  the  ac-   1R-  *•• 5<M- 
lion,  and  every  dilatory  plea  is  required  by  statute  to  be  verified 
by  affidavit,  or  some  probable  matter  shown  to  the  court  to  induce 
them  to  believe  that  the  fact  of  such  dilatory  plea  is  true. 

When  these  dilatory  pleas  are  allowed,*  the  cause  is  either  dis-  -1  Black, 
missed  from  that  jurisdiction,  or  the  plaintiff  is  stayed  till  his  dis- 
ability be  removed  ;  or  he  is  obliged  to  sue  out  a  new  writ,  by 
leave  obtained  from  the  court;  or  to  amend  and  new  frame  his 
declaration.  But  when,  on  the  other  hand,  they  are  overruled 
as  frivolous,  the  defendant  has  judgment  of  respondent  ouster,  or 
to  answer  over  in  some  better  manner;  it  is  then  incumbent  on 
him  to  plead  to  the  action. 

Pleas  that  totally  deny  the  cause  of  complaint,  are  either 
the  general  issue  or  a  special  plea  in  bar. 

The  general  issue,  or  general  plea,  is  what  traverses,  thwarts 
and  denies  at  once  the  whole  declaration  without  offering  any  spe- 
cial matter,  whereby  to  evade  it.  As  in  trespass  either  vi  ct  armis 
or  OK  the  case,  not  guilty ;  in  debt  upon  contract,  nihildcbet,  he  owes 
nothing;  in  debt  on  bond,  non  est  factum,  it  is  not  his  deed;  in 
debt  on  a  judgment,  nul  tiel  record,  there  is  no  such  record  ;  on 
an  assumpsit,  iwn  assumpsit,  he  made  no  such  promise.  Tlu:«", 
pleas  are  called  the  general  issue,  because,  by  importing  an  abso- 
lute and  general  denial  of  what  is  alleged  in  the  decl?.rati<>: :. 
they  amount  at  once  to  an  issue  ;  by  which  we  mean  a  fact 
affirmed  on  one  side  and  denied  on  the  other. 

There  arc  certain  matters  of  defence  which  regularly  must  be 
stated  at  large  in  the  form  of  a  special  plea  ;  such  in  general  arc 
matters  which  go  in  discharge  of  the  action,  or  in  avoidance  of  it, 
such  as  a  release,  a  discharge  under  the  insolvent  law,  an  accord 
and  satisfaction,  an  award,  payment,  tender,  &tc.  So  too,  a  jus- 
tification must  be  pleaded,  as  in  trespass,  that  the  land  was  the  de- 
fendant's freehold,  or  that  he  took  the  goods  as  a  distress  for  rent, 
or  beasts,  damage,  feascrnt :  the  statute  of  limitations  must  like- 
wise be  pleaded.f  In  an  action  of  covenant,  there  is  strictly  no 
general  issue,  for  the  plea  of  non  estfactum  cnly  puts  the  deed  in 
issue  ;  and  therefore  every  other  defence  must  be  pleaded  spe- 
cially. When  the  plea  of  the  defendant  has  been  put  in,  if  it: 
contain  any  thing  more  than  a  general  denial  of  the  plaintiff's  de- 
claration, the  plaintiff  must  reply  to  it,  either  by  alleging  some 
new  matter  in  support  of  his  declaration,  or  by  merely  denying 
the  facts  stated  in  it,  and  tendering  an  issue. 

But  it  is  unnecessary  to  enlarge  upon  the  subject  of  special  pleas; 
for,  by  the  act  for  th«  amendment  of  the  law,  s.  1.  the  defendant 
is  permitted  to  plead  the  general  issue,  and  to  give  acy  special 


*  If  the  matter  of  the  plea  be  sufficient  in  law  to  abate  the  suit,  the 
plaintiff  is,  not  withstanding,  not  bound  to  admit  the  truth  of  it,  but  may 
join  .in  i^sue  on  the  plea,  end  proceed  to  trial.   If  it  is  insufficient  '•• 
he  should  demur  or  except  to  the  validity  of  it. 

t  See  some  (juaUfic&tioas  to  thi^  rale  ia  a 


240  JUSTICES  COURTS 

matter  in  evicknce,  which,  if  pleaded,  would  be  a  bar  to  the  ac 
lion,  giving  notice   with  the    plea,  of  the  matter,  or  several  mat- 
ters so  intended  to   be   given  in    evidence;    and   particularly  be- 
cause special  pleading  is  in  a  great  measure  unnecessary  in  a  jus- 
perThomi).    lice's  court.      All  such  pleadings,  as  was  said  in  the  case  of  KLint 
3°cafii.s'        v-  Husted^  in  justice's   courts,   ought  to  be   discountenanced,  ar 
iitp-278.        being  calculated  to  mislead  magistrates,  and   involve  proceedings 

in  their  courts  in  all  the  niceties  of  special  pleading. 

cahiil  v.  The  joining  a  formal  issue   before  a  justice  is  not  material  ;  51 

ij.fhns.  Cas.  is  sufficient  if  it.  appear  to  have  been  substantially  done.  When- 
stilison  v.  ever  the  court  can  intend  from  the  record  that  the  merits  were 
sandforii,  fairly  tried,  they  will  not  examine  or  test  by  technical  rules  the 

3  Cairns'  .,  ..  ,,    .          .        ,. 

Rip.  174.       formality  of  the  pleadings. 

Goodenow  v.       In  an  action  against  the   defendant,  who  was  a  tavern   keeper, 

sunn's  Re  i   f°r  refusing  to  eritertatn  the  plaintiff,  the  defendant   pleaded  not 

127.  '  guilty,  and  set  off  a  trespass  by    tlie  plaintiff  in   breaking  a  door, 

fcc.  and  that  he  was  a  person  of  bad  reputation  :  the   court   said 

that  the  set-off  of  the  trespass,  or  violence  done  by   the    plaintiff 

in  the  house,  and  his  bad  character,  was  meant  only  as  a  reason  or 

justification  for  not  entertaining  him,  and  was  intended  to  support 

the  plea  of  not  guilty. 

crake^'u  ^n  an  act'on  of  assumpsit  before  a  justice,  the  plaintiff  on  the 
Johns.' Rep.  trial  proved  his  demand  substantially  ;  the  defendant  then  offered 
to  prove  payment:  this  was  objected  to  and  over-ruled  ;  and  a 
verdict  given  for  the  plaintiff.  Per  curiam.  The  evidence  of 
payment  offered  by  the  defendant  ought  to  have  been  received. 
It  was  an  action  of  assumpsit,  and  a  direct  payment  of  the  demand 
Avas  admissible  under  the  general  issue.  Had  the  payment  set 
up  been  by  matter  of  set-off,  it  should  have  been  pleaded,  or  no- 
tice thereof  given  at  the  time  of  joining  the  issue.  But  if  the  de- 
fence set  up  was  admissible  under  the  general  issue,  the  defend- 
•  ant  was  not  bound  to  disclosse  it  until  the  trial.* 


*  In  like  manner  the  defendant,  in  assumjisit,  may  give  in  evidence, 
under  the  general  issue,  infancy,  lunacy,  coverture,  duress;  that  the 
action  was  for  a  gaining  or  usurious  debt,  or  that  the  contract  ^  as 
void  by  the  statute  of  frnuds  ;  an  accord  and  satisfaction,  an  arbitrament, 
a  higher  security  given,  i>nd  H  release  :  but  a  tender  or  set-off  and  the 
Statute  of  limitations  must  be  ;  leaded,  or  notice  given  \v,tli  the  general 
issue  that  the  defendant  intended  to  insist  upon  them.  In  trover  and  tres- 
pass on  the  case,  almost  every,  if  not  every,  matter  of  defence  may  be 
given  in  evidence  under  the  general  issue.  In  trespass  it  is  otherwise, 
for  there  the  plea  of  not  guii/ii  merely  puts  the  facts  charged  in  the  plain- 
tiff's declaration  in  issue;  and  if  the  act  be  in  \a\v,prima facie,  a  trespass. any 
matter  of  excuse  or  justification  must  be  -'leaded  ;  but  a  freehold,  or 
Biere  possessory  right  in  the  defendant,  uiiiy  be  given  in  evidence  under 
the  general  issue.  1  Ckittij  Plead.  4G:1.  4"  :.  The  remarks  above  nu$le 
in  the  text  respecting  special  j'leas  are  only  applicable  in  their  full  ex- 
tent to  actions  of  covenant,  debt,  ami  trespass.  A  former  action  for  ilie 
same  cnuse  must  be  pleaded  in  a  justice's  court,  even  in  assumpsit.  Dex- 
ter r.  ifarwi,  10  Julius.  Hep.  2-16. 


JUSTICES  COURTS.  241 

Where  the  Court  is  held  at  a  different  place  from  the  one  men-  Ca»e  v.  van 
lioned  in  the  summons,  and  the  defendant  does  not  appear,  judg-  *johns.  c&. 
raent  by  default  is  erroneous.  *»3. 

The  default  of  the  defendant  in  not  appearing  and  pleading, 
does  not,  in  a  justice's  court,  amount  to  an  admission  of  the  cause 
«f  action  stated  in  the  plaintiff's  declaration. 

So,  where  on  the  return  of  the  summons,  the  defendant  being   cudwerT. 
called,  made  default,  and  the  plaintiff  exhibited  his  account  to  the   ^Jj"",^, 
justice,  who  gave  judgment  for  the  plaintiff,  without  any  proof  of  Hep.  we. 
the  plaintiff's  demand,  the  judgment  was  reversed.     Per  curiam. 
It  has  been  frequently  decided,  that  though  the  defendant  makes 
default  before  a  justice's   court,  yet  the  plaintiff  must  prove  his 
demand  in  the  same  manner  as  if  he  had  appeared  and  denied  it. 
The   act  says,  that  if  the   defendant  does  not  appear,  and  the 
summons  is  returned  personally  served,  or  if  he  does  appear,  &c. 
the  justices  shall  proceed  to  hear  and  examine  the  proofs  and  al- 
legations., &tc 

The  summons  was  returned  personally  served,  but  the  defend-   Siwiir. 
ant  did  not  appear,  and  his  default  was  entered.    The  justice  then    i^johiis. 
adjourned  until  two  days  after,  when  the  defendant  appeared  by    Re&- w- 
attorney,  and  tendered  a  plea  of  the  general  issue,  and  requested 
a  venire  ;  the  justice  overruled  the  plea,  and  refused  the  venire, 
on  the  ground  of  its  being  too  late  after  the  defendant  had  been 
called  and  defaulted;  but  permitted  the  defendant  to   give  -evi- 
dence in  mitigation  of  the  damages.     The  justice  gave  judgment 
for  the  plaintiff.     The  court,  held  that  the  decision  of  the  justice 
was  correct,  and  that  the  defendant  was  only  entitled  to  the  in- 
dulgence granted  him  by  the  justice, 

By  the  first  section  of  the  act,  the  parties  may  join  an  issue 
without  process,  on  which  the  justice  shall  proceed  to  try  the 
eausc. 

VII.  Adjournment. 

By  the  first  section  of  the  act,  the  justice  is  required,  on  the 
return  of  the  summons,  "  or  at  such  other  reasonable  time  as  he 
may  appoint,  not  exceeding  six  days  thereafter,"  to  proceed  to 
trial.  These  words  of  the  act  have  been  construed  to  authorize 
the  justice,  in  a  cause  commenced  by  summons,  to  adjourn  the 
cause  not  only  on  his  own  motion,  but  also  at  the  request  of  either  Damage  ?, 
party.  2  Luis.  Rep. 

A  justice  cannot  on  his  own  motion  adjourn  a  cause  more  than    p^g,.  T> 
once,  and  that  only  fora  time  not  exceeding  six  days  after  the  re-   Green, 
turn  of  process;  otherwise  it  will  amount  to  a  discontinuance  of  161"  " 
the  suit.     But  it  may  be  done  by  consent  of  the  parties.  Dunham  T. 

A  justice  cannot  adjourn  a  cause  at  the  instance  of  the  plaintiff  "j£hn".'Ren. 
for  more  than  six  days.  ssi. 

The  justice  may,  on  the  return  of  a  summons,  at  the  instance   uRk(friv' 
of  the  plaintiff,  adjourn  the  cause  for  six  days  without  requiring   o  Johu».  Rep. 
^n  oath  of  t'lp  a^rnce  nf  material  witnesses. 

31    1 


24'2  JUSTICES  COURTS. 

foldenr.  f  |ie   return  to  a  certiorari  stated  that  the  defendant  below  wn  = 

3  Caines'         sued  by  summons,  which   was  returnable  on  the  2<)th  July  ;  that 
Rep.  m.j        tjle  pa|.ties  appeared  on   that  day  and  pleaded ;  that  the  plaintiff 
below  prayed  a  day  to  prove  his  account,  and  the  justice  thereon 
,  adjourned   the   court   to   the   2d  of  August,   on   which   day   the 

plaintiff  appeared  in  court,  and  the  defendant  was  present,  but 
said  nothing,  whereupon  the  justice,  after  hearing  the  proofs  and 
allegations  of  the  plaintiff,  gave  judgment  for  him.  KENT,  Ch.  J 
Upon  this  case  the  justice  had  no  authority  to  adjourn  for  more 
than  six  days  after  the  day  of  appearance  of  the  parties  on  the 
summons.  The  act  is  positive  that  the  justice  shall,  upon  the  re- 
turn of  the  summons,  or  at  some  other  time,  not  exceeding  nix 
days  thereafter,  proceed  to  hear  the  cause,  and  in  the  present  in- 
stance, the  2d  day  of  August  was  the  seventh  day  thereafter.  There 
are  other  provisions  in  the  act  respecting  adjournments  ;  but  none 
of  them  have  any  application  to  the  present  case,  and  there  i? 
nothing  in  the  return  from  which  we  can  presume  any  consent  or 
acquiescence  on  the  part  of  the  defendant.  The  return  contain1 
pretty  strong  evidence  to  the  contrary.  On  the  day  of  the  re- 
turn of  the  summons,  the  defendant  pleaded  a  special  plea,  and 
the  plaintiff  refused  to  reply,  but  called  upon  the  defendant  to 
plead  the  general  issue,  which  he  refused  to  do,  and  then  the 
adjournment  took  place  at  the  prayer  of  the  plaintiff;  and  on  the 
<iay  of  adjournment  the  defendant  took  no  part  in  the  proceed- 
ings, but  remained  a  silent  spectator.  On  this  ground,  therefore, 
of  an  adjournment  beyond  the  time  authorized  by  the  act,  the 
judgment  below  must  be  reversed,  for  where  the  act  is  positive  in 
its  directions  it  must  be  strictly  observed. 

nose  v.  In  error  on  certiorari.   Stuyvesant  sued  Rose  before  the  justice. 

s  Yohiis".'  '  The  first  process  was  a  summons,  which  was  returned  as  person- 
R«p.426.  ajjy  served  by  reading.  The  plaintiff  appeared  on  the  return  day. 
at  the  time  and  place  appointed,  and  exhibited  his  demand.  The 
return  to  the  certiorari  stated,  that,  previous  to  this,  on  the  morn- 
ing of  the  day  on  which  the  parties  were  to  appear,  Rose  applied 
in  writing  for  an  adjournment,  on  account  of  his  child  being  dan- 
gerously sick.  That  the  justice  returned  an  answer  that  he  wish- 
ed further  satisfaction  on  the  subject,  and  unless  it  was  received, 
he  would  proceed  at  the  hour  to  try  the  cause.  On  the  same 
day,  and  before  the  parties  were  called.  Rose's  father  appeared  in 
his  behalf  to  get  the  trial  adjourned.  He  was  sworn  to  testify  to 
the  occasion  of  Rose's  absence,  and  said  that  Rose's  child  was 
dangerously  sick  ;  but  an  adjournment  was  refused.  Per  curiam. 
The  justice  had  a  discretion,  on  the  non-appearance  of  the  de- 
fendant below,  to  put  off  the  hearing  of  the  cause  to  such  reason- 
able time  as  he  should  appoint,  not  exceeding  six  days.  This 
discretion  is  not  an  arbitrary  one  :  it  ought  to  be  soundly  and  ju- 
diciously exercised.  The  situation  of  Rose's  child  was  such  as 
ought  to  have  induced  the  justice  to  put  off  the  trial  :  we  are  of 
opinion,  therefore,  that  the  judgment  ought  to  be  reversed. 


JUSTICES  COURTS.  243 

By  the  4th  section  of  the  act,  before  recited,  on  the  return  of  a 
-.varrant,  except  a  warrant  issued  at  the  suit  of  a  non-resident,if  either 
party  shall  require  a  longer  time,  than  the  time  when  the  defendant 
was  brought  before  the  justice,  or  the  three  days  thereafter,  to  try 
the  cause,  and  will,  if  required,  give  sufficient  security  to  appear 
and  stand  trial  on  such  other  day  a*  shall  be  appointed;  then  the 
justice  shall  adjourn  the  trial  of  such  cause  to  some  future,  day, 
not  less  than  three,  nor  more  than  twelve  days,  unless  the  par- 
ties and  justice  shall  otherwise  agree  ;  and  if  the  adjournment  is 
required  by  the  defendant,  he  shall  give  sufficient  security  to  ap- 
pear on  the  day  to  which  the  cause  is  adjourned,  and  in  default 
of  such  appearance,  to  pay  the  debt,  or  damages  and  costs,  if 
judgment  shall  be  given  against  him  or  her;  and  for  want  of  such 
security,  the  justice  shall  proceed  to  trial  without  an  adjourn- 
ment. 

"  In  cases  not  provided  for  by  the  last  section  as  aforesaid,  if 
the  defendant  shall  make  oath  that  he  cannot,  for  want  of  some 
material  testimony  or  witness,  safely  proceed  to  trial,  the  jus- 
tice shall  in  such  cases  postpone  the  trial  for  such  reasonable  time 
as  will  enable  the  defendant  to  procure  such  testimony  or  wit- 
ness :  Provided,  That  such  time  shall  not  exceed  three  months: 
And  provided  also,  That  such  defendant,  before  he  shall  be  enti- 
tled to  have  the  trial  postponed  as  aforesaid,  shall  give  security  to 
the  said  justice  to  appear  and  answer  the  said  action,  and  to  pay 
the  debt  and  damages,  and  costs,  or  render  himself  in  execu- 
tion in  case  judgment  shall  be  given  against  him.  Provided  also, 
That  in  any  action,  to  be  brought  by  virtue  of  this  act,  by  war- 
rant or  otherwise,  if  either  the  plaintiff  or  defendant  shall  request 
an  adjournment,  he  shall  not  be  entitled  thereto,  unless  the  party 
requesting  an  adjournment  (after  having  seen  the  account  or  de- 
mand of  the  adverse  party)  shall,  if  required,  exhibit  his  or  her 
account  or  demand,  or  state  the  nature  thereof  as  far  forth  as 
may  be  in  his  or  her  power,  to  the  satisfaction  of  the  justice  be- 
ibre  whom  the  cause  is  to  be  tried."  s.  5. 

The  justice  may,    on    the  return  of  the  warrant,  adjourn  the  Bowditcb  v. 
«-ause  at  the  request  of  the  defendant  for  a  less  time  than  three  Salisbury, 
days,  and  is  not  restricted  to  that  number  of  days  as  the  least  iitp.  aw. 
which  he  can  grant. 

In  an  action  by  a  non-resident  plaintiff  suing  by  warrant,  the  candee  v. 
justice  cannot  adjourn  the  cause  for  more  than  three  days,  with-  2Catws*e  ' 
out  his  consent.  KeP-  245- 

Jn  an  action  against  the  surety  of  a  defendant  who  had  been  nnnhamV 
taken  on  a  warrant,  and  obtained  an  adjournment,  at  the  expira-  ? John"  Key 
tion  of  which  he  appeared  by  attorney,  the  question  was,  whether  3'Ut 
this  was  a  good  appearance,  and  within  ttie  undertaking  of  his 
bail.     The  court  said:  We  think  the  appearance   mentioned  in 
this  section  (sect.  -1.)  must  mean  personal  appearance.     Where 
the  act  gives  the  process  by  warrant,  it  is  where  either  the  de- 
fendant is  without  a  family  or  a  freehold,  or  where  the  plaintiff1 


JUSTICES  COURTS. 


Si-bring  v. 
Whfrclon, 
8  Johns.  Rep. 
458. 


Seers  T. 

Grandy, 

1  Jubos.  Rep. 

514. 


Hemstract  r. 

Youngs, 

0  Jolms.  Rep. 

364. 


Eastonv. 

Coe, 

2  Johns.  Hep. 

333. 


is  a  non-resident  ;  and  in  the  latter  case  the  trial  is  to  be  -within 
three  days,  and  the.  giving  security  is  not  required.  The  war- 
rant is  intended,  except  in  the  single,  case  of  a  non-resident  plain- 
tiff, as  a  means  to  prevent  the  escape,  of  the  defendant,  and  as  a 
security  for  the  plaintiff's  demand  ;  if  then  the  defendant,  on 
•whose  person  the  plaintiff  has  a  lien,  can  appear  hy  attorney,  he 
frustrates  the  plaintiff's  demand.  We  have  a  right  to  consider 
the.  word  appearance,  in  reference  to  the  rights  of  the  plaintiffs, 
and  with  a  view  to  give  effect  to  the  intention  of  the  legislature, 
as  a  personal  appearance. 

"Where  a  defendant  was  sued  by  warrant,  and  asked  for  an  ad- 
journment, which  the  justice  refused  to  grant  unless  he  would 
make  oath  that  he  wanted  some  material  witness,  it  was  held 
that  the  justice  was  bound  to  adjourn,  on  the  security  being  ten- 
dered, without  requiring  an  oath  of  the  want  of  a  material 
witness. 

If  an  attorney  of  the  defendant  offer  to  make  an  affidavit  of 
the  absence  of  a  material  witness,  and  request  an  adjournment 
for  that  reason,  the  justice  ought  to  receive  it,  unless  some  spe- 
cial cause  to  the  contrary  be  shown. 

On  the  return  of  the  summons,  the  parties  appeared  and  joined 
issue,  and  a  venire  was  issued  at  the  instance  of  the  plaintiff,  and 
the  cause  adjourned  fo'r  six  days  ;  at  the  expiration  of  that  time 
the  parties  appeared,  and  the  defendant  demanded  an  adjourn- 
ment, which  the  justice  refused  to  grant,  unless  the  defendant 
would  pay  the  constable's  fees  on  the  venire,  and  the  juror's  fees, 
which  the  defendant  refused  to  do  :  the  cause  was  tried,  and  a 
verdict  found  for  the  plaintiff.  Per  curiam.  There  is  nothing 
in  the  return  from  which  we  can  infer  that  the  first  adjournment 
was  at  the  defendant's  request;  and  when  the  second  adjourn- 
ment was  moved  for  by  the  defendant,  we  are  to  presume  that 
he  offered  to  comply  with  the  conditions  requisite  to  entitle  him 
to  an  adjournment  under  the  fifth  section  of  the  act,  as  the  jus- 
tice put  his  refusal  to  grant  the  motion  on  a  different  ground,  and 
one  which  he  was  not  authorized  to  take.  The  defendant  must 
have  been  entitled  to  the  adjournment  as  of  right.  There  does 
not  appear  to  have  been  any  delay  or  want  of  due  diligence  on 
his  part  which  could  bring  his  case  within  the  decision  of  Powers 
v.  Lockicood,  (cited  infra.) 

The  defendant  was  sued  by  warrant  :  and  at  the  request  of  the 
defendant,  with  the  consent  of  the  plaintiff,  the  cause  was  ad- 
journed to  another  day,  when  the  parties  appeared,  and  the  de- 
fendant requested  a  second  adjournment,  on  account  of  the  ab- 
sence of  a  material  witness,  and  offered  to  make  oath  of  that 
fact.  The  plaintiff  (.ejected  to  the  adjournment,  on  the  ground 
that  the  defendant's  witness  lived  out  of  the  county,  which  was 
admitted.  The  justice  thereupon  refused  to  adjourn  the  cause  a 
second  time.  Per  curiam.  The  defendant  below  applied  for  an 
iM.'journraent  oa  account  of  the  o.bynice  of  e  -Material 


JUSTICES  COURTS.  245 

Tins  is  the  special  case  stated  in  the  8th  section*  of  the  act 
which  allows  an  adjournment  for  three  months.  It  is  not  the 
ruse  provided  for  hy  the  7th  section,  which  allows  either  party, 
without  showing  cause,  to  require  an  adjournment  not  exceeding 
twelve  days,  on  giving  security.  The  time  there  mentioned  can- 
not be  supposed  to  apply  to  the  case  of  an  absent  witness ;  for 
why  allow  an  adjournment  of  three  months  in  all  cases,  except 
when  the  defendant  is  taken  on  a  warrant,  and  then  only  for 
twelve  days  ?  The  7th  section  of  the  act  does  not  reach  the  spe- 
cial case  of  the  absence  of  a  material  witness.  That  the  witness 
lived  out  of  the  county  could  make  no  difference,  for  the  defend- 
ant might  procure  his  attendance  in  season,  and  was  to  take  his 
chance  for  that.  As  this  was  the  only  objection,  we  are  to  pre- 
sume that  the  defendant  was  ready  to  give  the  requisite  secu- 
rity. The  refusal  to  adjourn  the  cause  was  then  a  denial  of 
right,  and  the  judgment  below  must  be  reversed. 

Where  the  justice  has  once  adjourned  the  cause  at  the  request  J°twniend  T> 
of  the  defendant,  he  cannot  afterwards  grant  a  second  adjourn-  3  Johm.Rep. 
tnent  at  the  request  of  the  same  party. 

Johnson  declared  against  M'Nutt  in  the  court  below  ;  and  stated   M'Nuttr. 

Johnson, 

in  his  declaration,  that  in  October,  1807,  Nathan  Reynolds  was  7 Johns. Hep. 
brought  before  J.  C.  a  justice  of  the  peace  for  Montgomery  coun-  18' 
ty,  on  a  warrant  to  answer  to  the  plaintiff  below  in  a  plea  of  tres- 
pass on  the  case,  to  his  damage  twenty-five  dollars;  that  after 
joining  issue  before  the  justice,  Reynolds  demanded  an  adjourn- 
ment of  the  cause  until  the  3d  of  October,  1807,  and  offered 
AI'Nutl  as  bail,  who  became  bail,  and  undertook  that  Reynolds 
should  appear  and  stand  trial,  and  on  default  thereof  undertook 
to  pay  the  debt  and  costs.  That  Reynolds  appeared,  but  before 
judgment  was  rendered,  departed  from  the  court,  and  absconded 
from  the  county;  that  judgment  was  given  in  that  suit  for  the  plaintiff 
for  seven  dollars,  besides  costs  ;  that  execution  was  issued  and  re- 
turned ;  that  neither  the  goods  nor  the  body  of  Reynolds  were  to  be 
found ;  where  upon  an  action  accrued,  kc.  fee.  The  judgment 
against  Reynolds,  and  the  execution,  and  the  return  thereon,  were 
duly  proved.  A  witness  testified  that  he  was  present  at  the  trial 
between  the  plaintiff  below  and  .V.  Reynolds,  and  heard  the  de- 
fendant below  say  that  he  was  bail  for  Reynolds',  that  he  should 
appear  and  stand  trial  on  the  day  to  which  the  cause  was  ad- 
journed; and  that  Reynolds  did  appear,  but  departed  the  court 
before  the  trial  was  determined.  Upon  this  evidence  a  judgment 
was  given  for  the  plaintiff  below.  Per  curiam.  The  judgment 
1s  erroneous.  By  the  7th  section  of  the  twenty-five  dollar  act,; 


*  This  case  was  decided  under  the  act  of  1801,  SPSS.  .?-'i,  c.  165. 
Kent  and  Radcliffe's  edition,  vol.  1  p.  491.  In  th.s  particular,  the  lan- 
guage o  f  this,  and  the  act  of  1813,  are  the  same. 

t  See  preceding  note. 


246  JUSTICES  COURTS. 

(sess.  21,  c.  1 05.)  to  entitle  the  defendant  to  an  adjournment, 
under  the  circumstances  existing  in  the  original  case,  the  defen- 
dant is  to  give  sufficient  security  to  appear  on  the  day,  &c.  and 
in  default  of  such  appearance,  to  pay  the  debt  and  costs,  if 
judgment  should  be  given  against  such  defendant.  The  particular 
kind  of  security  is  not  designated  ;  but  it  must  be  either  a  recog- 
nisance taken  by  the  justice,  or  at  least  a  written  engagement, 
otherwise  it  comes  directly  within  the  statute  of  frauds;  here  there 
appears  to  have  been  neither. 

FinkT.Haii,       An  application  for  an  adjournment  is  too  late  after  the  jury 
43r°l)ni'Rt:p'   have  heen  empirnnelled.    For  the  trial  of  the  cause  must  then  be 

deemed  to  hav ••  commenced. 

rowers  r.  After  issue  joined,  the  cause  was  adjourned  on  the  motion  of 

9  JoiinrKcp.  ^e  defendant,  and  a  jury  summoned.     On  the  return  of  the  ve- 
133.  nire,  the  defendant's  attorney  moved  for  an  adjournment  on  the 

ground  of  the  absence  of  two  material  witnesses,  and  offered  to 
make  the  requisite  oath,  and  give  the  security  ;  but  the  motion 
was  denied  by  the,  justice.  Per  curiam.  The  only  question  in 
this  case  is,  whether  the  defendant  made  his  application  in  sea- 
son. One  adjournment  had  already  been  made  at  his  request, 
after  issue  was  joined.  It  does  not  appear  that,  during  the  period 
of  that  adjournment,  the  defendant  took  any  steps  to  procure  the 
attendance  of  the  witnesses  he  afterwards  alleged  that  he 
wanted.  This  application  must  be  made  in  due  season.  It 
would  clearly  be  too  late,  if  it  was  not  made  until  the  jury  had 
been  sworn  and  the  plaintiff  had  entered  upon  his  proof.  There 
must  be  some  reasonable  limitation  to  the  time  of  the  applica- 
tion, and  of  which  the  court  is  to  judge.  After  one  adjournment 
at  the  request  of  the  defendant,  to  enable  him  to  prepare  for  trial, 
it  would  be  vexatious  to  allow  him  another,  on  the  usual  affidavit, 
and  without  showing  any  diligence  in  the  mean  time.  The  first 
adjournment  prayed  for  by  the  defendant  was  for  time  to  prepare 
for  trial,  and  was  a  substitute  for  an  adjournment  on  affidavit  and 
security.  Both  the  witnesses,  whose  names  were  given  by  the 
defendant,  lived  within  four  miles  of  the  court.  The  defendant 
is  always  entitled,  as  of  right,  to  one  adjournment  to  procure  tes- 
timony, on  making  the  requisite  oath  ;  but  if  he  neglects  to  take 
out  subptenas,  or  make  any  effort  to  procure  his  witnesses  after 
issue  joined,  and  after  an  adjournment  on  his  own  motion,  he 
ought  not,  in  reason  and  justice,  to  be  entitled  to  a  farther  adjourn- 
ment, without  some  special  cause  shown  for  the  non-attendance 
of  his  witnesses,  or  for  the  adjournment.  On  the  adjourned  day, 
after  issue,  the.  plaintiff  is  supposed  to  appear  with  his  proof,  and 
the  jury  to  appear  upon  the  venire  ;  and  it  would  be  an  abuse  for 
the  defendant  to  be  entitled,  as  of  course,  to  another  adjourn- 
ment to  procure  his  testimony,  without  having  taken  any  one 
step  towards  it  in  the  mean  time,  or  shown  any  one  reason  why 
he  has  omitted  to  do  it.  The  statute  could  not  have  been  in- 
landed  to  help  a  party  in  his  wilful  negligence.  In  the  case  of 


JUSTICES  COURTS.  247 

Easton  v.  Coe,  (supra)  it  was  to  be  presumed  efforts  had  been 
made  during  the  first  adjournment  to  procure  the  witness  ;  for  it 
appeared  on  the  second  application,  that  the  witness  lived  out  of 
the  county.  It  was  assumed  in  that  case,  that  the  application  was 
made  without  any  imputable  neglect,  for  none  appeared  or  was 
pretended;  but  here  the  court  cannot  avoid  seeing  that  the  appli- 
cation was  founded  on  gross  neglect,  and  it  was  therefore  properly 
overruled,  as  too  late,  without  some  special  cause  shown. 

But,  in  another  case,  after  issue  joined,  the  cause  was  adjourned,  **?'k™*d  T- 
on  motion  of  the  defendant,  for  upwards  of  thirty  days.  At  the  njohm. 
day  fixed  by  the  adjournment,  the  defendant,  on  proving  due  dili-  ^P-442- 
gence  in  subpoenaing  his  witnesses,  and  making  oath  that  a  ma- 
terial witness,  who  had  been  subpoenaed,  did  not  attend,  moved 
for  a  second  adjournment :  no  objection  was  made  to  the  affidavit, 
nor  was  any  negligence  imputed  to  the  defendant;  but  the  justice 
refused  to  grant  the  adjournment,  unless  the  defendant  would  pay 
all  the  extra  costs,  which  he  refused  to  do,  and  left  the  court, 
and  judgment  was  given  for  the  plaintiff;  and  the  judgment  was 
reversed  on  certiorari.  The  court  said :  it  appears  upon  giving 
security,  and  showing  due  diligence  and  special  cause,  a  defendant 
may  be  entitled  to  a  second  adjournment.  Whether  a  justice's 
court  has  a  right,  in  any  case,  to  exact  costs  upon  granting  a 
favour  to  a  party,  it  is  not  now  necessary  to  decide :  but  under 
the  circumstances  of  this  case,  the  justice  had  no  right  to  annex 
such  a  condition,  because  the  defendant,  on  good  grounds,  claimed 
it  as  a  right. 

An  improper  adjournment  amounts  to  a  discontinuance  of  the  Gamagev. 
ca^ise :  but  where  a  justice  has  a  discretion  as  to  adjourning  a  p,  ai*".1'™' 
cause,  nothing  but  an  abuse  of  that  discretion  will  be  regarded  as  S}J''fon'D 

8  Johus  Hep. 

error.  409. 

By  the  return  of  a  certiorari,  it  was  stated  that,  on  the  day  ap-    c'riuiiiger. 
pointed  to  appear,  the  justice  could  not  attend,  and  sent  a  note,  but  4Johnj.Rep. 
without  signing  it,  to  the  place  where  the  court  was  to  be  held, 
adjourning  it.     The  parties  afterwards  appeared,  and  remained 
some  time,  but  the  justice  not  coming,  they  went  away.     Per 
curiam.     An  adjournment  made  by  the  justice  while  absent  from 
the  place  where  the  court  was  appointed  to  be  held,  and  by  a 
note  in  writing,  without,  his  signature,  was  clearly  not  an  adjourn- 
ment of  which  the  parties  were  bound  to  take  notice.     The  cause 
was  consequently  discontinued  and  out  of  court. 

Where  a  justice  adjourned  a  cause,  on  the  suggestion  of  the  Proudfitr. 
plaintiff,  that  the  defendant  had  agreed  to  an  adjournment,  and  on 
the  affidavit,  of  the  plaintiff  of  the  absence  of  a  material  witness,  391* 
without  showing  due  diligence  to  procure  his  attendance,  it  was 
held  that  the  justice  had  not  an  unlimited  discretion  to  adjourn  at 
the  suggestion  of  the  plaintiff,  and  that  such  adjournment  was  a 
discontinuance  of  the  cause. 

An  adjournment  for  more  than  six  days  cannot  be  objected  to 
as  erroneous  by  the  party  at  whose  instance  it  was  granted. 

Rpp.  166. 


248 


Dunham  r. 

Heyden. 

7  Johns.  Rep. 

381. 

Carleton  v. 
Willonghby, 

9  Johru.Kc'p. 

im 


Hill  T. 

Downer, 

11  Johns. 
Ktp.461. 


Kifmore  r. 

Sudam, 

?  Johnj.  Rep. 

Ml 


JUSTICES  COURTS, 

If  the  opposite  party  appear  on  the  day  to  \vinch  the  cause 
adjourned,  and  go  to  trial,  it  is  a  waiver  of  any  irregularity  in  the 
adjournment. 

An  adjournment  was  granted  at  the  request  of  the  defendant, 
and  at  the  expiration  of  the  time  the  parties  appeared,  and  tht 
plaintiff  requested  an  adjournment,  on  account  of  the  non-attend- 
ance of  a  witness  who  had  heen  subpoenaed.  The  defendant 
objected,  but  the  justice  granted  the  adjournment  on  the  plain- 
tiff's oath,  and  giving  security.  The  cause  was  afterwards  tried 
by  jury,  and  a  verdict  found  for  the  plaintiff.  The  court 
•whatever  objection  there  might  have  been  to  the  second  adjourn- 
ment on  the  strict  construction  of  the  act,  the  granting  it  was  rea- 
sonable and  just,  under  the  circumstances  of  the  case,  and  the 
objection  was  waived  by  the  appearance  of  the  defendant  after- 
wards on  the  day  of  adjournment,  and  going  to  trial  on  the  merits. 

If  the  defendant,  on  being  refused  an  adjournment,  voluntarily 
confess  judgment,  he  cannot  afterwards  object  to  the  refusal  of 
the  adjournment,  but  will  be  deemed  to  have  waived  the  irregu- 
larity. 

The  right  of  a  justice  to  adjourn  a  cause  on  his  own  motion, 
must  be  claimed  and  exercised,  if  at  all,  at  the  return  of  the  pro- 
cess ;  and  if  the  first  adjournment  is  made  by  consent  of  parties, 
the  justice  cannot  adjourn  the  cause  a  second  time  on  his  own  mo- 
tion ;  but  if  the  parties  consent  to  the  second  adjournment  ;  or  if. 
being  present,  they  make  no  objection  to  it,  it  cannot  afterward: 
be  taken  advantage  of. 

VIII.  Stt-off. 

"  If  the  defendant,  in  any  action  to  be  brought  by  virtue  of  thtf 
act,  hath  any  account  or  demand  against  the  plaintiff,  be  may 
plead  and  set  off  the  same  against  the  debt  or  demand  of  the 
plaintiff ;  and  if  any  defendant  shall  neglect  or  refuse  so  to  do, 
such  defendant  shall  forever  thereafter  be  precluded  from  having 
any  action  against  the  plaintiff  to  recover  the  same,  or  any  part 
thereof :  Provided  always,  That  where  the  balance  found  to  b? 
due  to  the  defendant  shall  excerd  twenty-live  dollars  .in  such  case 
the  justice  shall  enter  judgment  against  the  plaintiff  for  costs,  and 
the  defendant  shall  not  be  precluded  from  recovering  the  same  ac- 
count or  demand  against  the  plaintiff  in  any  court  of  record  having 
cognisance  thereof :  And  provided,  That  nothing  herein  contained 
shall  authorize  or  require  any  defendant  to  set  off  any  damages 
arising  or  accruing  from  any  trespass  done  or  committed  by  the 
plaintiff  to  the  defendant,  or  any  other  demand,  except  such  only 
as  may  arise  on  contract,  either  expres*  or  implied  by  law,  but 
this  exception  shall  not  exclude  any  written  evidence  of  debt, 
either  with  or  without  seal."  s.  6.  . 

The  law  relating  to  set-off  in  a  justic  >'s  court  is  in  some  impor- 
tant respects  different  from  that  established  in  other  courts;  there 


JUSTICES  COURTS  349 

o  set-off  is  permitted,  hut  not  required  ;  but  here  the  defendant,  if  it 
•:-xisls,  must  make  it,  or  submit  to  losing  his  demand  ;  so  too  in  a  jus- 
tice's court,  a  set-off  may  be  made  in  an  action  for  unliquidated  da- 
mages, and  unliquidated  damages  may  also  be  set- off,  whereas  it  is 
otherwise  in  the  superior  courts.  The  distinction  being  so  strongly 
marked,  it  will  in  a  great  measure  be  unnecessary,  and  it  may  per- 
haps be  unsafe,  to  go  beyond  those  decisions  which  have  express- 
ly been  made  on  cases  arising  in  justice's  courts.  It  will,  however, 
he  proper  to  observe,  that  the  defendant,  an  far  as  regards  his  set- 
off,  becomes  an  actor  in  the  cause,  and  is  bound  to  support  it  in 
the  same  manner  as  if  he  had  brought  an  action,  and  declared 
upon  it,  and  the  plaintiff  likewise  may  make  every  defence  which 
he  could  have  done  if  the  action  had  been  against  him  by  the  de- 
fendant for  the  demand  which  is  the  subject  of  his  set-off ;  thus 
i.he  plaintiff  may  give  in  evidence  a  release,  that  the  defendant's 
demand  was  barred  by  the  statute  of  limitations,  kc. 

In  an  action  before  a  justice,  the  defendant  pleaded,  that  the  plain-  M-Cumber  v 
tiffs  ought  not  to  have  or  maintain  their  action  against  him,  because  I'johi'is  Her 
he  had  before  that  time  commenced  an  action  against  the  plain-  i0« 
tiffs  before  another  justice,  in  the  investigation  of  which,  the  same 
question  then  before  the  jury  had  been  made  before  the  other 
justice,  and  that  the  damages  claimed  by  the  plaintiffs,  ought  to 
have  been  set-off  by  them  in  the  former  suit.  The  plaintiffs  re- 
plied, that  their  demand  was  not  exhibited  before  ths  other  jus- 
tice, and  that  heing*for  uncertain  damages,  it  could  not  have  been 
set-off  in  that  action.  The  justice,  after  hearing  the  parties,  and 
their  evidence,  decided  that  the  plaintiffs  ought  not  to  he  barred 
by  means  of  the  premises,  on  which  further  evidence  was  introdu- 
ced. The  same  pleas  were  again  stated  and  argued  before  the 
jury,  who  found  a  verdict  for  the  plaintiffs  for  the  damages  demand- 
ed. KENT,  Ch.  J.  Several  objections  were  raised  to  the  validity  of 
the  proceedings  below,  but  it  will  be  sufficient  to  notice  one  that 
goes  to  the  merits  of  the  case.  The  defendant  pleaded  a  former 
suit  by  him  against  the  plaintiffs  in  bar,  and  they  replied  that  their 
demand  against  him  being  for  uncertain  damages,  could  not  be 
set-off  in  the  former  suit,  and  the  justice  overruled  the  plea. — 
The  existence  of  the  former  suit  was  not  put  in  issue,  but  admit- 
ted by  the  replication,  which  also  admitted  that  the  demand  for 
which  the  present  suit  was  brought,  had  not  been  pleaded  or  set- 
off  in  the  former  suit.  The  simple  point,  therefore,  is,  whether  it 
ought  not  to  have  been  set-off.  The  words  [of  the  act]  are  very 
broad.  It  is  his  account  or  demand  that  is  to  be  set  off.  In  Eng- 
land, unliquidated  damages  cannot  be  set-off,  for  the  set-nff 
statutes  speak  only  of  mutual  debts.  Our  statute  receives  a  similar 
construction,  for  itappiies  only  to  persons  dealing  together,  and  in- 
debted to  each  other.  But  I  think  that  the  act  in  question  re- 
quires a  more  extensive  construction,  and  that  the  word  demand 
here,  must  apply  .it  least  to  ail  matters  arising  upon  contract. 
ct  is  very  impqralive,  and  intended  to  prevent  cross  suits, 

r  si  i 


v50  JUSTICES  COURTS. 

and  a  course  of  petty  and  vexatious  litigation,  in  respect  t- 
mands  within  the  jurisdiction  of  a  justice.  If  is  not  necessary  at 
present  to  say,  whether  the  word  demand,  in  the  act,  will  reach  to 
every  matter  within  the  cognisance  of  a  justice,  nor  do  I  mean 
to  be  understood  to  that  extent.  But  as  to  demands-  arising  upon 
contract,  I  am  of  opinion  they  ought  to  be  pleaded  as  a  set-off,  and 
consequently  that  the  justice  determined  erroneously  in  this  case. 
The  return  states,  that  the  same  pleas  were  afterwards  introduced 
and  argued  before  the  jury,  but  we  are  here  to  understand  that 
the  pleadings  still  included  the  same  admissions  of  the  parties, 
and  that  the  fact  of  the  existence  of  <he  former  suit,  and  of  the 
•  •mission  to  set-off,  was  not  controverted.  The  jury,  therefore,  by 
their  verdict,  confirmed  the  erroneous  decision  of  the  justice, 
and  for  this  cause  I  think  the  judgment  below  ought  to  be  re- 
versed. 

3m*kh  7'  ^'r  t'ie  pfamt'8"  belowv  signed  a  writing,  by  which,  for  value  re- 

10  Johns.  ceivcd,  he  promised  to  paint  the  house  of  L.,  the  defendant,  in  a  par- 
-R.tp.2iO.  ticular  manner  specified  in  the  agreement;  and  B.  indorsed  oi> 
the  paper  a  promise  that  the  agreement  should  be  executed  in  a 
workmanlike  manner,  and  S.  brought  a»  action  of  assumpsit 
against  L.  for  work  and  labour,  &c.  in  which  L.  pleaded  the 
agreement  by  way  of  set-off,  and  claimed  damages  for  its  non- 
performance.  The  defendant  offered  the  agreement  in  evidence, 
which  was  objected  to  by  the  plaintiff,  on  the  ground  that  the 
agreement  did  not  appear  to  be  between  the  plaintiff  and  defen- 
dant, but  that  it  was  between  the  plaintiff  and  B. :  on  ceriiorari,  the 
court  held  that  the  agreement  or  guaranty  of  B.  might  be  set  off 
in  the  action  between  S.  and  L. 

eobb  T.  Cur-  In  assumpsit.  The  plaintiff  declared  that  the  defendant  had 
g'johns.  Rep.  sometime  before  sued  him  before  another  magistrate,  and  that 
*'6-  before  the  return  day  of  the  summons  he  settled  with  him,  and 

paid  him  three  dollars  in  full,  and  the  defendant  promised  to  go 
to  the  magistrate  and  pay  the  costs  ;  but  that  instead  of  doing  so, 
he  appeared  at  the  return  of  the  summons,  and  obtained  a  judg- 
ment for  25  dollars  against  the  plaintiff.  The  declaration  was 
proved,  and  judgment  was  given  in  favour  of  the  plaintiff  for  25 
dollars.  Per  curiam.  The  plaintiff  below  was  not  barred  oi 
his  action,  for  not  having  set  off  this  demand  in  the  suit  so  carried 
on  against  him  in  defiance  of  the  agreement.  The  set-off  in  a  suit, 
before  a  justice,  of  any  counter  demand  or  account,  must  mean,  as 
in  cases  of  set-off  in  other  courts,  accounts  or  demands  existing 
nt  the  commencement  of  the  suit,  and  the  agreement  here  wras  sub- 
sequent, and  so  could  not  have  been  a  legal  set-off.  It  is  a  settled 
rule,  that  no  matter  of  defence,  arising  after  action  brought,  can 
be  pleaded  in  bar,  or  as  a  set-off. 

<  nrprntei  v.  So,  where  a  defendant,  after  a  writ  issued  against  him,  of  which 
?johrM.eU>  ^e  ua(^  notice»  anu"  before  he  was  actually  arrested,  purchased  a 
Cas.  145.  promissory  note  made  by  the  plaintiff,  which  was  endorsed  to  him 


JUSTICES  COURTS.  251 

50V  the  avowed  purpose  of  setting  it  off  against  tho  plaintiff's  de- 
mand ;  it  was  held  that  the  set-off  was  not  admissible. 

A  set-off  is  not  admissible  in  an   action  for  a  tort;  as  in  tres-  Ketierr. 
pass  on  the  «ase,  for  not  returning  and  misusing  certain  chattels,  ^aT™** 
eternised  or  let  by  the  plaintiff  to  the  defendant,  or  in  trespass,  or  *<-T-  «<• 
trover,  which  are  actrons  for  torts  ^  consequently,  if  the  defendant   Alien  v.  Hor- 
be   sued   in   trespass,   and   afterwards  in  assumpsit  by' the  same   7  Joiini.  Rep. 
plaintiff,  it  is  no  •objection  to  his  making  a  set-off  in  the  latter  ac-  ^^  Va 
tion,  that  it  existed  at  the  lime  ofthe  former  suit ;  nor  will  a  plea   Davis, 
of  a  former  action,  in  which  the  now  plaintiff  was  defendant,  and    R^p.'m'. 
might    have  set-off  his  demand,  be  valid,  if  that   former  action 
were  for  a  tort. 

A  cause  of  action  arising  from  tort,  cannot  be  eet  off  in  an  ac-  Deanv.  AI- 
tion  founded  in  contract.  sTohm.  Rep. 

In  an  action  of  assumpsit  on  a  promissory  note,  the  defendant  3('9- 
admitted  ihe  note  in  question,  and  proved  that  he  had  before  sued  Ea'rie, y 
one  Johnson,  before  another  justice,  and  recovered  against  hkn,  *J°hns-RcF' 
and  that  Johnson  was  then  rh-e  owner  and  possessor  of  the  same 
note,  and  did  not  set  it  off  pursuant  to  the  statute.  The  plaintiff 
proved  that  in  the  suit  against  Johnson,  the  note  was  offered  as  a 
set-off  by  him,  and  the  justice  rejected  it,  -on  the  ground,  that 
previous  to  the  transfer  of  the  note  by  the  plaintiff  to  Johnson,  and 
before  the  same  was  du«,  the  plaintiff  had  agreed  to  receive  pay- 
ment of  it  in  ashes.  The  plaintiff  also  proved,  that  before  and 
since  the  commencement  ofthe  suit,  (he  defendant  had  confess- 
ed that  he  justly  owed  the  amount  of  the  note,  and  requested  the 
plaintiff  to  take  payment  in  blacksmith's  work.  Per  curiam. 
The  former  judgment  against  Johnson,  while  holder  of  the  note 
in  question,  was  no  bar  to  the  plaintiff's  suit,  because,  under  the 
special  agreement  to  take  payment  of  the  note  in  ashes, 
the  note  was  not  negotiated  after  it  was  due,  without  being 
subject  to  that  agreement  ;  and  it  was  properly  rejected 
when  offered  as  a  set-off  by  Johnson.  It  was  returned  therefore 
to  the  plaintiff  below,  and  the  defendant,  after  such  return,  had 
confessed  that  he  owed  it  to  the  plaintiff.  Having  objected  to  its 
admissibility  as  a  set-off  by  Johnson,  he  cannot  now  take  advan- 
tage of  that  act,  (even  if  *rrorteous,)  to  defeat  a  recovery  alto- 
gether on  the  note. 

If  the  plaintiff  do  not  object  to  the  set-off  at  t1*«  Time  of  plead-  Kii^v.  rul- 
ing or  giving  notice  of  it,  he  cannot  afterwards  except  to  it.  s'c'aine'i 

In  an  action  of  assumpsit,  the  defendant  produced  a  running  ac-   *\f.P-152- 
eount  against  the  plaintiff,  amounting  to  229  dollars  and  .34  cents,   Lai-month, 
by  way  of  set-off,  which  the  justice -overruled,  hei-Huee   it  was  not   ^Johus.  Hep- 
fully  substantiated.     A  motion  was  then  made  for  a  nonsuit,  on    Smitiiv. 
the  ground  that  the  matters  exceeded  the  justice's  jurisdiction  ;  but 
ihe  objection  was   overruled,  and  a   verdict  was   found  ,  for  the 
plaintiff.     Per  cnriam.     The  defendant  was  hound  to  set-off  his 
account,  and  if  h«  sum  total  proved  to  the  satisfaction  of  the  jus- 
tice amounted  to  200  dollars,  fac  had  no  jurisdiction,  and  ought  to 


,;5«S  JUSTICES  COURTS. 

have  nonsuited  the  plaintiff.      He   says  the  account  was  not  fully 
substantiated,  and   so  he  rejected  it.     If  it  was   substantiated  to 
any  sum  less  than  200  dollars,  it  ought  to  have  been  received  and 
submitted  to  the  jury,  so  that  i!'  the   balance  found  for  the  defen- 
dant exceeded  25  dollars,  judgment  mighthave  been  entered  against 
the    plaintiff*.     To  overrule  the  whole  account  would  destroy   it 
forever,  if  this  judgment  remains  in  force.     Judgment  reversed. 
•.prjMut  v.          The  defendant  must  set-oif  the  very  first  opportunity  he  has  for 
n.iuus  |_jlat  p,,rpOSei      So  where  two   actions   were  commenced  by  the 

'.fohiis.  Rep.  l       ' 

«8.  plaintiff  by  summons,  both  returnable  at  the  same  hour,  and  before 

the  same  justice,  in  one  of  which  suits  the  plaintiff  declared  for  20 
dollars,  to  which  the  defendant  made  no  defence,  and  judgment 
was  given  against  him,  and  the  plaintiffimmediately  after  declar- 
ed in  the  second  action  for  ti  dollars,  to  which  the  defendant  plead- 
ed a  set-off,  which  the  justice  refused,  the  judgment  below  was 
affirmed  ;  and  the  court  said,  that  by  omitting  to  set-off  his  demand 
in  the  first  action,  the  defendant  lost  his  right  of  set-off,  and  his 
demand  was  forever  extinguished,  and  that  the  justice  was  there- 
fore right  in  refusing  the  set-off  in  the  second  suit. 

M-Kemsr.          Where  the  defendant,  who  was  sued  before  a  justice  on  a  note, 

littvdlHT 

3  Jobui.  Rep.  neglected  to  set-off  a  demand  for  damages  for  the  breach  of  an 
agreement  of  the  defendant  to  remove  his  goods  from  a  store, 
though  he  had  not  then  paid  or  suffered  any  actual  damages,  but 
the  agreement  was  broken  ;  it  was  held  that  he  could  not  after- 
wards (having  been  afterwards  obliged  to  pay  a  certain  sum  by 
way  of  damages  to  the  person  to  whom  he  had  sold  the  store,  in 
consequence  of  the  plaintiff's  non-performance  of  his  agreement) 
sue  for  or  recover  the  damages  for  the  breach  of  the  agreement. 
uiU'w^/d  '•^'ie  defendant  ought  either  to  plead  his  set-off,  or  give  notice  of 

'.ojohm.  '  it  at  the  joining  of  issue,  and  not  keep  it  in  reserve  and  secrecy 
Uep.  108.  untjj  t|ie  trja|  nas  commenced  ;  fur  this  is  calculated  to  surprise 
the  plaintiff,  and  prevent  him  from  being  prepared  to  controvert 
the  account  or  demand  so  offered  as  a  set  off ;  such  conduct  is  calcu- 
lated to  work  great  injustice,  and  is  contrary  to  the  meaning  of  the. 
act.  And  where  the  de-fondant  delayed  his  set-off  until  the  trial 
commenced,  which  being  then  objected  to,  was  admitted  by  the 
justice,  arid  judgment  given  for  the  defendant,  the  judgment  was 
reversed. 

IX.  Pica  of  a  former  action. 

A  plea  of  a  former  action  frequently  occurs  in  a  justice's  court, 
and  is  proper,  eillicr  where  a  former  action  had  been  brought  by 
the  same  plaintiff,  ngainst  the  same  defendant,  for  the  same  cause 
of  action,  in  which  a  verdict  was  found,  or  a  final  judgment  given 
for  one  or  the  other  of  the  parlies,  or  where  a  former  action  had 
been  brought  by  the  pres;ent  defendant  against  the  now  plaintiff, 
in  which  the  latter  having  an  existing  demand  against  the  then 
plaintiff,  ueglcc-lcd  to  sot  it  off;  r.nd  such  plea  is  a  bar  to  t!1 


JUSTICES  COURTS.  253 

*ion.  A  pica  of  a  former  action  is,  in  the  first  case,  founded  on 
principles  of  universal  justice,  and  is  common  to  all  courts;  in 
the  latter  case,  it  is  peculiar  to  a  justice's  court. 

In  personal  actions,  a    recovery  upon  demurrer,  confession,  or   Com. Dip. 
verdict,  &c.  is  a  bar   to  every  other  personal  action  forever,  and    Actiot> CK. 3.) 
therefore  the  party  has  no  remedy  but  by   reversing  the  judg- 
ment in  error  ;  and  it  makes  no  difference,  that  the  second  action 
is  of  a  different  nature  from  the  former:  as  a  recovery  in  debt  is 
a  bar  in  assumpsit  upon  the  same  contract,  and  t  contra  ;  or  a  re- 
covery in  trespass  is  a  bar  in   trover  for  the   same  goods. 

So,  a  judgment  for  the  defendant  in  trespass  de  bonis  ajportatis, 
is  a  bar  to  an  action  of  assumpsit  to  recover  the  price  of  the 
same  goods.  What  is  meant  by  the  same  cause  of  action,  is  where 
the  same  evidence  will  support  both  the  actions,  although  they 
happen  to  be  grounded  on  different  writs. 

So,  where  in  trespass  quare  clausum  fre.git,  and  for  cutting  and   Johmonv. 
carrying  away  wheat,  before  a  justice,  the  defendant  proveda  former   g  Jo'tms.  Bep 
suit,  by  the  same  plaintiff,  for  wheat  cut  and  carried  away,  in  which   383> 
trial  there  was  a  verdict  and  judgment  for  the  plaintiff,  and  the  jus- 
tice overruled   the  plea,  and  judgment  was  given  below  for  the 
plaintiff,  the  judgment  was  reversed.     The  court  said,  the  former 
.-uit  was  for  cutting   and  carrying  away  wheat,  and  was  for  the 
same  cause  of  action,  and  though  the  former  action  was  denomina- 
ted by  the  justice  an  action  of  trespass  on  the  case,  and  this  was 
trespass,  it  did  not  alter  the  application  of  the  rule,  which  depend- 
ed not  upon  the  identity  of  action,  but  upon  the  same  proof  in 
both  cases. 

In  an  action  of  trover  before  a  justice  for  six  hundred  bushels    CurtUv. 
of  coal,  it  was  proved  that  there  had  been  a  former  trial  in  a  suit    ^j"hDj  Rep 
in  trespass  for  damages,  for  cutting  the  timber  and  making  it  into    "8- 
coal ;  and  that  on  such  former  trial,  the  value  of  the  timber  cut, 
and  a  counter  demand  for  the  coal,  were  fully  submitted  to  the 
jury,  and  it  was  held  to  be  a  sufficient  defence,  that  the  demand 
for  the  coal  had  been  once  submitted  to  a  jury,  when  the  plaintiff 
was  sued  in  the  former  action  of  trespass  for  cutting  the  timber, 
and  that  that  jury  had  passed  upon  the  present  claim. 

In  an  action   before  a  justice  for  work  and  labour,  in  burning    flroeUway  v 
three  hundred  bushels  of  lime,  the  defendant  pleaded  non  assump-    *TJtw.s.ti< 
sit,  and  gave  notice  that  he  should  prove  that  the  plaintiff  had   -I0- 
before  sued  him  for  the  same  matter,  and  recovered ;  and  it  was 
proved  to  the  jury  that  the  plaintiff,  in  the  former  trial,  declared  on 
a  promissory  note,  and  also  for  the  same  work  and  labour,  and  that 
the  jury  in  that  cause,  after  hearing  the  allegations  and  proofs  of 
the  parties,  found  a  verdict  for  the  plaintiff  for  the  amount  of  the 
note.     One  of  the  jurors  in  the  former  cause  testified,  that  the 
jury  found  a  verdict  on  the  note,  and  had  nothing  to  do  with  the 
lime.     The  jury  in  the  present  suit  found  a  verdict  for  the  plain- 
fill'.     Per  curiam.     The  plea  was  substantially  of  a  former  trial 
for  the  same  cause,  and  was  a  good  bar.  for  the  plaintiff  declared 


254  JUSTICES  COURTS. 

each  time  for  the  same  cause  of  action.  It  was  not  shown  that  the 
plaintiff*  abandoned  the  charge  for  burning  the  lime  before  or  at. 
tbe  trial.  That  charge,  of  course,  went  to  the  jury  on  th> 
trial,  and  took  its  chance  with  them.  If  they  did  not  allow  it,  for 
want  of  sufficient  proof,  or  for  any  other  cause,  it  was  the  plain- 
tiff's misfortune.  The  verdict  must  be  considered  as  conclusive 
between  the  same  parties  in  regard  to  the  same  matter;  other- 
wise it  would  he  in  effect  permitting  one  jury  to  review  the  de- 
cisions of  another.  If  the  plaintiff  at  the  first  trial  had  not  chosen 
to  hazard  a  verdict,  he  should  have  entered  a  nolle  prosequi  on 
the  chargR,  or  consented  to  a  nonsuit.  As  it  was  made  a  part  of 
the  plaintiff's  demand,  and  submitted  to  the  jury,  it  was  their  in- 
dispensable duty  to  pass  upon  it.  It  would  be  dangerous  to  per- 
mit jurors  thus  to  separate  the  plaintiff's  demand,  and  give  a  ver- 
dict for  such  parr  only  as  they  pleased, 
iiwmv.  jn  an  Action  before  a  justice  for  the  defendant's  carelessly 

lvliO\.  J  •* 

n>  Johns.  leaving  salt  in  the  public  road,  by  which  his  steer  was  killed  ;  for 
KtJI'  3C5'  breaking  a  plough,  fee.  the  defendant  pleaded,  that  all  the  charges 
in  the  plaintiff's  declaration,  except  the  last,  had  been  submitted 
to  a  former  jury,  and  set  up  that  trial  in  bar.  The  plaintiff 
offered  to  show  that  the  jury,  on  the  former/trial,  did  not  take  the 
charge,  for  the  loss  of  the  steer,  in  consideration  ;  but  it  appeared, 
that  tho  former  jury,  after  retiring  to  consider  on  their  verdict, 
talked  some  time  about  the  steer.  A  verdict  was  given  for  the 
plaintiff  in  this  suit.  Per  curiam.  The  former  judgment,  as  far 
as  it  respected  the  demand  for  the  steer,  was  a  bar  to  the  present, 
suit,  for  the  same  cause.  It  appears  that  the  plaintiff  had  ex- 
hibited that  demand  to  a  jury  in  a  former  suit,  and  that  jury  took 
it  into  consideration,  but  gave  no  damages  on  account  of  that  de.- 
mand.  for  want  of  sufficient  proof.  As  the  demand  was  not  aban 
dontd  by  the  plaintiff  before  or  at  the  trial,  but  submitted  to  the 
jury,  the  former  verdict  is  a  bar.  As,  then,  improper  evidence 
was  given  to  the  jury  in  this  suit,  and  as  we  cannot  say  how  much 
of  the  verdict  embraced  the  demand  for  the  steer,  the  judgment 
in  this  view  must  be  considered  erroneous. 

>>u,.r  v  A  verdict  in  an  action  before  a  justice  is  a  good  bar,  although 

',-,  the  justice  has  never  rendered  any  judgment  upon  it;  as  when: 
the  jury  gave  a  verdict  of  no  cause  of  aclion,  it  was  held  that  this, 
though  informal,  was  substantially  a  verdict  for  the  defendant,  on 
which  the  justice  was  hound  to  give  judgment,  and  was  a  bar  to 
another  action  for  the  same  cause. 

HPSS  x-.  So,  where  a  cause  has  been  tried  before   a  justice,  without  a 

ffjoims"'      .J|nT»  am'  finaJ'y  submitted  to  him,    it  is  a  good  bar,  although 
Hrp.  437.       judgment  should  never  be  given. 

jnnes  v.  jn  an  action  for  a  deceit  in  the  sale  of  a  certain  improvement 

s'.Toht'slp.cp.   or  patent  right,  before  a  justice,  the  defendant  set  up  in  defence, 

4i3>  a.  former  trial  and  judgment  in  an  action  brought  by  him  before  a 

justice.  again?t  the    plaintiff,   on   a   promissory  note  given  for  the 

I'?.™  inor^y,  in  which  suit  the  present  phuntiff  set  upthede- 


JUSTICES  COURTS  Ii55 

n  it  in  the  sale  as  a  defence  against  the  note,  and  the  same  w;ts 
considered  by  the  justice,  and  a  judgment  given  for  the  plaintiff" 
for  the. amount  of  the  note  :  it  was  held  that  the  first  trial  and 
judgment  were  a  complete  bar  to  the  second  suit  for  the  deceit. 

Where  a  suit  was  brought  on  a  note  to  A.  or  bearer,  and  the  de-   Huu-.iiiugs  v. 
feudant   pleaded  a  former  suit  on  the  same  note  brought  against   4^1,',,,. Rcp. 
him  by  A.,  and  a  judgment  in  favour   of  the   defendant,  it  was   222. 
held  that,  as  the  former  action  was  not  between  the  same  parties  as 
the  present  suit,  it  was  not  a  bar  ;  and  that  to  render  the  former 
judgment  a  bar,  it   ought   at  least  to  have  been  shown,  that  the 
former  suit  was  by  the  real  owner  of  the  note. 

Where  to  a  plea  of  a  former  action,  commenced  by  summons   wentworth 
by  the  defendant  against  the  plaintiff,  the  plaintiff  replied  that  his   ^j*,™""1' 
(the  present)  suit  was  by  warrant  on  oath,  and  the -justice  decided   Uep.  238. 
that  as  the  warrant   was  issued  on   oath,  and  the  plaintiff  still  in- 
sisted that  he  was  afraid  of  losing  his  debt  if  delay  was  made,  the 
plaintiff  ought  not  to  be  nonsuited,  and  overruled  the  plea,  it  was 
held  that  the  plea  was  a  sufficient  bar,  and  whether  the  suit  was 
hy  warrant  or  summons  could  make  no  difference. 

In  an  action  before  a  justice,  the  plaintiff  declared  in  substance   riatnerr. 
that  he  had  sued  the  defendant  in  a  former  suit,  and  that  one  of  "'John,. 
the  items  of  his  demand,  amounting  to  seven  dollars,  was  confess-    Kci>.  sso. 
ed  by  the  defendant,  and  the  other  disputed  ;  and  that  the  justice 
by  mistake,  in  giving  his  judgment,  omitted  to   allow  the   seven 
dollars.     It  was  to  recover  this   item   that  the  suit  was  brought. 
The  plaintiff  proved  his  declaration,  and  the  defendant  objected 
to  the  plaintiff's  recovery,  on  the  ground  of  the  former  trial.    The 
objection  was  overruled,  and  a  verdict  was  found  for  the   plain- 
tiff; but  the  judgment  was  reversed.     Per  curiam.    The  cause  of 
action  has  once  been  tried,  and  it  would  be  a  dangerous  principle 
to  allow  a  judgment  to  be.  opened,  and  the  cause  of  action  again 
tried,  by  another  justice,  on  the  ground  of  a  mistake  in  the  for- 
mer trial.     If  such  mistake  was  made,  it  cannot  be  corrected  in 
this  way. 

A  nonsuit  in  a  former  cause  is  no  bar  ;  so,  where  the  defendant  Youiev. 
pleaded  that  the  plaintiff  had  before  sued  him  for  the  same  cause    lo^johns?'1' 
of  action,  and  that  the  costs  of  the  nonsuit  were  still  unpaid,   1UP' 361- 
and  the  justice  for  that  cause  dismissed  the  action  ;  the  court  said, 
that  'he  former  nonsuit  was  no  bar  to  the  present  action,  uor  had 
the  justice  any  right  to  dismiss  the  action  because  the  costs  of  the 
fmi.-er  suit  were  unpaid.     The  higher  courts  will  sometimes  stay 
proceedings  in  a  suit  until  the  costs  of  a  former  suit  for  the  same 
matter  arc  paid  ;  but  this  is  done  on  a  rule  to  show  cause,  and  in 
the  exercise  of  a  large  and  liberal  discretion.     But  no  such  power 
or  discretion  can  be  assumed  by  a  justice's  court. 

The  mere  pendency  of  a  suit  before  another  justice  is  a  good   Douglas  v. 
bar  ;  as  where  A.  sued  B.,  and  13.  immediately  after  sued  A.,  and   fjo^s.^ep. 
A.  in  the  latter  actio-i  ph  ;iii;v.l  that  he   had    brought   an   action    2S-- 
against  B.  before  another  ju?l;cf.  and  that  thft  summons  had  been 


JUSTICES  COURTS, 

duly  served  on  B.  prior  to  the  otlier,  the  plea  ivao  held  a  sufficient 
bar. 

It  has  been  stated  that  it  was  a  good  plea  in  bar,  that  a  former 
action  had  been  brought  by  the  present  defendant  against  the  now 
plaintiff,  in  which  the  latter  having  an  existing  demand  against 
the  then  plaintiff,  neglected  to  set  it  oft'.  This  depends  on  tin; 
sixth  section  of  the  act,  which  declares,  that  if  any  defendant  shali 
neglect  or  refuse  to  set  off  his  account  or  demand,  he  shall  forever 
thereafter  be  precluded  from  having  any  action  against  the  plain 
tiff  to  recover  the  same,  or  any  part  thereof. 

Lawrence  v.       If  the  set-off,  which  is  the  subject  of  the  present  suit,  was  im 
•/john^Rep.  properly  rejected  in  the  former  suit,  that  suit  is,  notwithstanding. 
I29-  a  good  bar,  as  long  as  it  continues  unreversed. 

Dcanr.  If  the  subject  of  the  present  action  could  not  legally  have  been 

*Johns.Rep.  se*  °^  nl    tne  former  one,  it  will  not  be  a  bar,  as  if  the  present, 
39o.  action  is  for  a  tort,  and  the  former  one  was  on  a  contract ;  so  too 

Hopkins.        if  the  justice  in  the  former  action  rejected  the  set-off  because  il 
violins. Rep.  cou]d  not  legally  be  made,  the  demand  which  was  offered  as  a 

set-off  not  being  then  actually  due,  it  will  not  be  a  bar. 

white  v.  A.  being  arrested  at  the  instance  of  B.,  on  a  charge  of  having 

^Tohns  Rep   taken  B.'s  bridle,  to  avoid  further  trouble  and  expense  A.,  on  the 
I3*'  demand  of  B.,  gave  him  a  promissory  note   for  twelve   dollars ; 

and  B.  promised  that  if  A.  would  ever  show  that  he  had  not  had 
the  bridle,  or  that  he  was  innocent  of  the  charge,  or  if  the  bridle 
should  be  found,  he  would  give  up  the  note,  and  pay  A.  for  his 
trouble.  B.  sued  A.,  before  a  justice,  on  the  note,  and  recovered 
judgment  for  the  amount,  which  was  paid  by  A.  A.  afterward? 
brought  an  action  before  another  justice,  against  B.,  to  recover 
back  the  money,  on  the  ground  that  he  was  innocent  of  the 
charge,  and  that  B.  had  got  his  bridle  again,  without  the  know- 
ledge or  assistance  of  A.,  and  B.  pleaded  the  former  action  in  bar, 
which  was  overruled  by  the  justice,  but  the  court  held  that  the 
neglect  of  A.  to  set  off  his  demand  was  a  sufficient  bar.  The 
grounds  on  which  he  recovered  in  this  suit  would  have  been  a 
good  defence  in  the  former  suit,  and  if  the  ph'mliffs  were  not  in 
a  situation  at  that  time  to  make  out  tlvtt  defence  by  pivof,  it  was 
their  misfortune.  The  money  having  been  collected  under  a  re- 
gular judgment,  cannot  be  recovered  hack  in  a  new  suit,  upon  the 
allegation  that  evidence  has  since  been  discovered  of  a  defence 
which  existed  before  the  judgment. 

Dcxmrv.  The   former  trial  must  be  pleaded,  or  given  notice  of,  at  tire 

Mazen,  time  of  joining  issue,  and  it  is  too  late  after  pleading  the  general 

30  Johns. 

•Hep.  246.        issue  to  set  up  that  defence  at  the  tnaf. 

Fowler  v.  So,  where  the  defendant  pleaded  the  general  issue,  and  be.ing 

Jonns/Xep.    asked  if  he  had  any  account  or  demand  to  set  off,  answered  that 
m>  he  had  none,  but  at  the  trial  offered  to  prove  a  former  action  ; 

but  the  justice  rejected  the  evidence,  and  a  verdict  and  judg- 
ment were  given  for  the  plaintiff:  the  judgment  was  affirmed. 
The  court  said,  that  the  defendant  having  omitted  to  plead  or 


JUSTICES  COURTS.  057 

give  notice  of  the  former  tn'al  and  judgment,  was  precluded  from 
giving  evidence  of  it  at  the  trial.  It  would  produce  surprise  on 
tin1,  part  of  the  plaintiff,  and  injustice,  if  (hi-  defendant  wore  al- 
lo'ved  to  set  up  at  the  trial  special  matter  in  bar,  of  which  no  no- 
tice had  been  previously  given  to  the  plaintiff'. 

As  to  the  evidence  requisite  to  support  a  plea  of  a  former  ac- 
tion, vide  post,  XIX. 

X.  Plea  of  title. 

"  When  in  any  action  of  trespass  on  any  land  or  other  real  es- 
tate, any  defendant  shall  justify  on  a  plea  of  title,  the  defendant 
shidl  commit  such  plea  of  justification  to  writing,  and  having 
signed  the  same  in  the  presence  of  such  justice,  shall  deliver  tin- 
plea  to  the  justice,  who  shall  then  countersign  the  same,  and  de- 
liver it  to  the  plaintiff;  and  it  shall  and  may  be  lawful  to  and 
for  such  plaintiff  to  commence  and  prosecute  an  action  for  sncli 
trespass  against  such  defendant,  in  the  court  of  common  pleas  of 
the  county  in  which  such  trespass  shall  have  been  committed; 
and  if  such  plaintiff  shall  recover  any  damages  in  such  action,  the 
defendant  shall  be  liable  to  pay  to  such  plaintiff  double  costs;  ami 
on  every  trial  to  be  had  for  such  trespass,  the  plea  signed  by  such 
defendant  shall  be  conclusive  evidence  that  the  defendant  re- 
lied on  his  title  to  justify  such  trespass  ;  and  every  justice,  to 
whom  a  plea  of  justification  shall  be  tendered,  shall,  before  he 
shall  receive  such  plea,  exact  from  the  defendant,  together  with 
one  sufficient  surety,  a  recognisance  in  the  sum  of  fifty  dollars, 
conditioned,  that  if  such  plaintiff  shall  commence  a  suit  before 
the  next  court  of  common  pleas,  for  the  recovery  of  damages 
for  such  trespass,  such  defendant  shall  appear  and  put  in  special 
bail  in  such  court,  within  twenty  days  after  the  first  day  of 
the  then  next  term  of  the  said  court  ;  and  in  every  case  iu 
which  such  plea  shall  be  tendered,  and  the  defendant  shall  not 
forthwith  enter  into  such  recognisance,  the  justice  shall  proceed 
in  the  same  manner  as  if  such  plea  had  not  been  tendered  :  Pro- 
vided, nevertheless,  That  it  shall  be  competent  to  such  defendant, 
notwithstanding  the  said  plea  of  title,  to  show  on  the  trial  of  any 
such  cause,  before  any  court  of  common  pleas,  that  the  plaintiff 
had  not  possession  of,  or  title  to,  the  premises  at  the  time  sucti 
supposed  trespass  was  committed."  s.  7. 

A  plea  of  title  is  not  valid  unless  reduced  to  writing.  Suge  r» 

B:irnei, 

XI.  Conviction  under  the  excise  or  tavern  law.  355°.  '" 


"  All  convictions  to  be  had  before  any  justice  as  aforesaid,  for 
offences  against  the  act,  entitled,  '  an  act  to  lay  a  duty  on  strong 
liquors,  and  for  regulating  inns  and  taverns,'  shall  be  drawn  up  in 
the  following  manner,  viz  :  '  City  of  New-York,  (or  Westchester 
county,  or  other  city  or  county,  as  the  case  may  be)  to  wit:  Be 
it  remembered,  that  on  the  -  day  of——,  in  the  year  of  our 
Lord  one  thousand  eight  hund.-ed  and  -  ,  A.  B.  of  the  city  of 

[  33  ] 


355. 

this  eaie 


JUSTICES  COURTS. 

New-York,  (or  of  Bedford  in  the  county  of  Westchester,  or  other 
city,  or  town,  or  county,  as  the  case  may  require)  merchant  (or 
farmer,  or  other  addition,  as  the  case  may  require)  (and  adding) 
being  an  innboldcr  or  tavern  keeper,  (if  the  case  be  so)  is  this 
day  convicted  before  C.  D.  mayor  (or  recorder,  or  one  of  the 
aldermen,  as  the  case  may  require)  of  the  said  city,  (or  one  of  the 
justices  of  the  peace  of  the  said  county,  as  the  case  may  require,) 

of  having  on  the day  of last,  (or  instant)  at ,  in  the 

said  city,  (or  county)  sold  by  retail  one  quart  (or  other  quantity) 
of  rum,  (or  other  spirituous  liquors,)  without  having  such  permit, 
or  to  be  drank  in  his  (or  her)  house  or  out  house,  yard  or  garden, 
•without  having  entered  into  such  recognisance  as  is  mentioned  in 
the  act,  entitled,  '  an  act  to  lay  a  duty  on  strong  liquors,  and  for 
regulating  inns  and  taverns,'  or,  of  not  having  in  his  (or  her) 
house,  two  spare  beds  for  guests,  with  good  and  sufficient  sheet- 
ing and  covering  for  such  beds  respectively,  for  the  accommoda- 
tion of  travellers  ;  (or)  of  not  having  good  and  sufficient  stabling 
and  provender,  of  hay  and  grain,  if  in  winter,  and  if  in  summer, 
of  hay  or  pasturage,  for  four  horses,  or  other  cattle,  more  than 
his  or  their  own  stock,  for  the  accommodation  of  travellers,  ac- 
cording to  the  form  of  the.  act,  entitled,  'an  act  to  lay  a  duty  on 
strong  liquors,  and  for  regulating  inns  and  taverns,'  (or)  of  having 

on  the day  of ——last, (or  instant) at ,  in  the  said  c 

county)  sold  one  gill  (or  other  quantity)  of  rum  (or  other  strong 
li  ijuor )  to  —  an  apprentice  (or  servant,  or  slave)  of———,  knowing 
or  having  reason  to  suspect  or  believe  him  or  her  to  be  such,  with- 
out the  consent  of  his  or  her  master  (or  mistress)  against  the 
form  of  the  act,  entitled,  '  an  act  to  lay  a  duty  on  strong  liquors, 
and  for  regulating  inns  and  taverns,'  (or)  of  having  for  the  space 
of  one  month  (or  two  or  more  months)  neglected  to  put  up  and 
keep  such  sign  up,  as  is  required  by  the  act,  entitled,  '  an  act  to 
lay  a  duty  on  strong  liquors,  and  for  regulating  inns  and  taverns.* 
Given  under  my  hand,  the  day  and  year  first  above  written.'  And 
every  such  conviction  shall  and  may  be  pleaded  in  bar  to  any 
other  prosecution  for  the  same  offence."  s.  8 

XII.   Trial  and  its  incidents. 

The  trial  in  a  justice's  court  may  be  either  before  the  justice 
alone,  or  before  the  justice  and  a  jury.  By  the  second  section  of 
the  act,  the  justice  is  authorized,  in  case  the  defendant  does  not 
appear  at  the  time  and  place  appointed  in  the  summon?,  and  it 
•shall  appear  by  the  return  endorsed  thereon,  that  the  summons 
was  personally  served,  or  if  the  defendant  does  appear  oq  the 
return  of  the  summons,  to  proceed  to  trial ;  and  in  like  manner, 
under  the  fourth  section  of  the  act,  where  the  suit  has  been  com- 
menced by  warrant,  the  justice  may  try  the  cause  alone,  bi^ 
cither  party  may,  after  issue  joined,  demand  a  trial  by  jury. 

"  In  every  action  to  be  brought  by  virtue  of  this  act,  it  shall  br 
foreither  of  the  parties  to  the  suit,  or  the  attorney  of  either 


JUSTICES  COURTS.  259 

of  them,  after  issue  joined,  (and  before  the  court  shall  proceed  to 
inquire  into  the  merits  of  the  cause,)  to  demand  of  said  court  that 
such  action  he  tried  by  a  jury  ;  and  upon  such  demand,  the  said  jus- 
tice, holding  such  court,  it  hereby  required  to  issue  a  venire,  direct- 
ed to  any  constable  of  the  city  or  town  where  the  said  cause  is  to  be 
tried,  commanding  him  to  summon  twelve  good  and  lawful  men, 
being  freeholders  or  freemen  of  such  city,  or  being  freeholders  of 
such  town  where  the  said  cause  is  to  be  tried,  and  who  shall  be  in 
r.o  wise  of  kin  to  the  plaintiff  or  defendant,  nor  interested  in  such 
suit,  to  be  and  appear  before  such  justice  issuing  such  venire  at 
such  time  and  place  as  shall  be  expressed  in  such  venire,  to  makt 
a  jury  for  the  trial  of  the  action  between  the  parties  mentioned  in 
the  said  venire  ;  which  constable  shall,  at  the  return  of  the  said 
venire,  return  a  panel  of  the  names  of  the  jurors  he  shall  so 
summon  by  virtue  thereof;  and  the  name  of  each  person  so  em- 
pannelled,  shall  be  written  on  several  and  distinct  pieces  of  pa- 
per as  nearly  of  one  size  as  may  be,  and  shall  be  delivered  t»  the 
said  justice  before  whom  such  action  is  to  be  tried,  by  the  con- 
stable returning  such  panel,  and  shall,  by  the  said  constable,  be 
rolled  up,  all  as  nearly  as  may  be  in  one  and  the  same  manner,, 
and  put  together  in  a  box  or  some  convenient  thing  ;  and  on  the 
trial  of  such  cause,  such  justice,  or  such  indifferent  person  as  he 
shall  appoint  for  that  purpose,  shall  draw  out  six  of  the  said  pa- 
pers, one  after  another  ;  and  if  any  of  the  persons  whose  names 
shall  be  so  drawn  shall  not  appear,  or  shall  be  challenged  and  set 
astde,  then  such  further  number  thereof  shall  be  drawn  as  shall 
make  up  the  number  of  six  who  do  appear,  after  all  legal  causes  of 
challenge  allowed  by  the  said  justice,  unless  the  said  parties  agree 
that  the  said  constable  shall  summon  six  men  at  his  discretion  ; 
and  the  said  six  men  so  first  drawn  and  appearing,  and  approved 
by  the  court  as  indifferent,  shall  be  the  jury  who  shall  try  the 
cause,  to  each  of  whom  the  said  justice  shall  administer  the  fol- 
lowing oath  :  '  You  do  swear,  in  the  presence  of  Almighty  God, 
that  you  will  well  and  truly  try  the  matter  in  difference  between 

plaintiff,  and defendant,  and  a  true  verdict  will 

give  according  to  evidence.'     And  after  the  said  jury  shall  have 
taken  the  oath  aforesaid,  they  shall   sit  together,  and  hear  the 
several  proofs  and  allegations  of  the  parties,  which  shall  be  deli- 
vered in  public  in  their,  presence  ;  and  to  each  of  the  witnesses  on 
the  said  trial,  the  justice  shall  administer  the  following  oath,  viz  : 

*  You  do  swear  in  the  presence  of  Almighty  God,  that  the  evi- 
dence you  shall  give  in  this  matter  in  difference  between 

plaintiff,  and defendant,  shall  be  the  truth,  the  whole  truth, 

and    nothing  but  the   truth.'       After    hearing    the  proofs    and 
allegations,  the  jury   shall  be  kept  together  in  some  convenient 
place,  until  they  all  agre-e  upon    a  verdict;    for  which  purpose 
a  constable  shall    be   sworn,  and  to  whom  the  said  justice  shall 
administer  the  following  oath,  viz :  '  You  do  sw«ar,  in  the  pre- 
sence of  Almi-hty  God,   that  you  will,  to  the  utmost  of  your 


2GO  JUSTICES  COURTS 

ability,  keep  every  person  sworn  on  this  inquest t ope tbcr,  ir 
private  .'md  convenient  place,  without  meat  or  drink,  except  wa- 
ter ;  von  will  not  suffer  any  person  to  spp.'ik  to  them,  nor  ppeak 
to  th'-m  yourself,  unless  by  order  of  the  justice,  unless  it  he  fo 
ask  thorn  whether  they  have  agreed  on  their  verdict,  until  they 
have  agreed  on  their  verdict.'  And  when  the  jurors  have  agrepd 
on  their  verdict,  they  shall  deliver  the  same  to  the  justice  in  the 
same  court,  who  is  hereby  required  to  give  judgment  thereupon, 
and  to  award  execution  in  manner  hereafter  directed  ;  Prm-ided 
alicnyi,  That  no  oath  ofvither  party,  or  ex  parte  affidavit  of  any 
other  person,  shall  he  allowed  or  given  in  evidence  in  any  such 
action,  unless  the  parties  agree  to  allow  such  evidenc- 

"  Every  person  suhpcenaed  as  a  witness,  either  in  the  county  in 
which  the  justice  resides,  or  the  next  adjoining  county,  or  sum- 
moned as  a  juror,  who  shall  not  appear,  or  appearing,  shall  refuse 
to  serve,  or  give  evidence  in  such  action,  shall  forfeit  and  p 
every  such  default  or  refusal,  (unless  some  reasonable  cause  be 
proved  on  oath,  to  the  satisfaction  of  the  said  court)  such  fine  or 
fines,  not  exceeding  the  sum  of  ten  dollars,  nor  less  than  sixty-two 
cents,  as  the  said  court  shall  think  reasonable  to  impose  ;  and  the 
said  court  is  hereby  authorized  and  required  to  issue  a  warrant 
to  any  constable,  to  levy  the  same  of  the  goods  and  chattels  of 
the  offender,  and  for  want  thereof,  to  take  and  convey  him  or 
her  to  the  gnol  of  the  city  or  county  wherein  the  offence  shall 
have  been  committed,  there  to  remain  until  he  or  she  shall  pay 
such  fine,  together  with  the  costs  attending  the  same  ;  and  the 
keeper  of  such  gaol  is  hereby  commanded  to  keep  such  offender 
in  safe  custody  in  such  gaol,  until  such  fine,  together  wi:h  the 
costs,  shall  be  paid  :  Provided  always.  That  no  such  fine  or  fines 
shall  be  Imposed,  unless  such  witness  or  juror  shall  be  present 
before  such  justice  at  the  *ime  of  imposing  such  line,  and  have  op- 
portunity of  being  heard  against  the  imposing  thereof,  or  shall 
have  been  summoned,  either  in  the  name  of  the  people,  or  the 
overseers  of  the  poor,  hereafter  mentioned,  to  appear  before  a 
j-.istice  of  the  peace,  to  show  cause  against  the  imposition  of  any- 
such  fine  :  all  and  every  of  which  said  fines,  when  recovered, 
shall  be  paid  by  the  said  court  to  the  overseers  of  the  poor,  for 
the  use  of  the  poor  6f  the  city  or  town  where  the  same  shall  be 
levied."  s.  10. 

Manny  r.  A  venire  can  be  awarded  only  where  an  issue  has  been  joined, 

3°ain«v         an^  not  on  a  judgment  by  default,  or  where  the  defendant  does 
*«!'•  *i3-        not  plead. 

oineyv.  Where  the   bill  on  which  the  action  was  brought    was   shown 

?"(*£. Rtp.   to  thr  justice,  "ho  inspected  it.  but  no  proof  was  called   for  or 
142.  '   offered,  and  the  defendant  demanded  a  trial  by  jury,  whi< 

justice  refused,  it  was  held  that  the  trial  had  not  been  commen- 
ced by  merely  taking  \:p  end  ir.rp'ctir^  the  bill,  and  that  the  de- 
fendant was  not  too  late  in  his   deinauu  of  a  jury,  and   a 
4Mfbt  to  have  been  awarded. 


JUSTICES  COURTS.  261 

After  n  party  has  prayed  a  jury,  the  justice  cannot  proceed  to    nay  v. 
trial  without  one,  and  if  the  venire  has   been   lost,  or   for  some    tCtiti^f 
oilier  cause  has  not  been  returned,  the  justice  should  issue  a  se-    Kep.137. 
cond  one. 

So  when  the  defendant  requested  a   venire,  which  was  issued    ^hnnsr. 
and  delivered  to  him,  hut   was  never   returned,  and   the  justice    8jabn*.H«e, 
tried   the  cause  without  a  jury,  without  the   defendant's  assent,    46°- 
who  was  absent  when  the  trial  commenced,  but  before  the  trial 
was    ended  came   in,  and  protested   to  the  justice's  proceeding, 
and  judgment  was  given  for  the  plaintiff,  the  judgment  was    re- 
versed.    The  court  said,  there  is  no  suggestion   that  the   venire 
was  improperly  suppressed   by   the   defendant.     After    the  jury 
process  had  been  issued,  it  was  not  legal   for  the  justice   to  pro- 
ceed to  try  the  cause  without  a  jury.     It  was  competent  to  him 
to  have  issued  a  new  venire,  although  the  former  one  was  not  re- 
turned, and  this  was  the  course  which  he  ought  to  have  pursued. 
Nothing  was  done  on  the  part  of  the    defendant:  that    could  he 
construed  into  a  waiver  of  a  trial  by  jury,  or  assent  to  a  trial  by 
the  justice. 

But  if  the  defendant  being   present  does  not  demand  another   Wn-'.->ar.f  v, 
renire,  but  proceeds  to  trial  without  it,  it  is  a  waiver  of  the  trial 
by  jury. 

If  a  venire  be  defective,  error  in  it  cannot  be    alleged   by  thr    £^- 
party  at  whose  instance  it  was  issued,  and  if  the  first  venire  has  not    acaimV 
been  returned,  and  the  justice  issues  a  second  one,  it  will  be  con- 
sidered   as  the  process  of  the   party  at  whose  instance   the  first 
was  issued. 

A  justice  may  award  a  tales  de  circumstantilus,  in  case  of  a  de-    z«-eiy  v  .Tan- 
faultof  the  jurors  summoned  on  the  venire.     The  power  of  award-    f^'p.Vse'""' 
ing  a  tales,  the  court  said,  is  incident  to  a  court  of  justice,  and  es- 
sential to  its  proceedings.     By  the  first  section  of  the  act,  every 
justice  is  invested  with  all  the  power  usual  in  courts  of  record,  for 
the    purpose    of  hearing  and  trying  causes  ;  and   the  power    of 
awarding  a  tales,  incase  of  a  default  of  the  jurors  summoned  on 
the  venire,  is  a  power  usual  in  courts  of  record. 

In  an  action  before  a  justice,  when  the  jurors  were  called  to  try    Smith  T. 
the  cause,  several  of  them  did  not  appear;  for  want  of  a  sufficient    2John».Rep. 
number,  the  justice  directed  the  constable  to  summon  some  of  the   g' 
by  slanders,  hut  none  were  found  competent  to  serve  on  the  jury. 
The  plaintiff  then   requested  that  a  new  venire  should  issue  ;  but 
the  justice  nonsuited  him,  alleging  that  the  plaintiff  had  not  ask- 
ed for  an  adjournment  of  the  cause  :  and  judgment  was  given  that 
the  defendant  should  recover  his  costs  of  the  plaintiff.    A  certiorari 
was  brought,  and  the  judgment  reversed. 

By  the  lUtli  section  of  the  act,  above  recited,  a  fine  often  dol- 
lars may  be  imposed  upon  a  witnesss  who  being  subpoenaed  does 
not  appear,  or  refuses  to  give  evidence  ;  but  the  party  injured  is, 
notwithstanding,  entitled  to  an  action  against  the  witness  for  the 
damages  which  he  hati  sustained  by  the  want  of  his  testimony. 


JUSTICES  CODRTS. 

"k"  actlon  was Brought  before  ajustice  to  recover  damages  which 
the  plaintiff  had  sustained  by  rensoo  of  the  non-attendance  of  the 
defendant  as  a  witness,  in  a  certain  cause  tried  before  a  justice,  in 
which  the  plaintiff  was  defendant,  and  in  which  the  present  defen- 
dant was  regularly  subpoenaed  a&a  witness.  The  plaintiff  offered 
to  prove  by  a  witness,  that  the  defendant  had  been  served  with  a 
subpoena,  in  the  cause  above  mentioned,  but  the  defendant  objec- 
ted to  any  parol  evidence,  and  insisted  that  the  writ  of  subpoena 
ought  to  be  produced  ;  but  the  justice  over  ruled  the  objection. 
The  witness  testified  that  the  defendant  admitted  in  conversation 
that  he  had  been  served  with  a  subpcena  on  the  part  of  the  plain- 
tiff, but  that  he  was  too  unwell  to  attend,  and  besides,  had  busi- 
ness at  the  time  with  his  congregation,  (being  a  minister.)  The 
plaintiff  below  admitted  that  he  had  the  subpoena  at  the  trial,  but 
did  not  produce  if, :  or  give  any  reasons  why  he  did  not.  A  verdict 
rind  judgment  were  given  for  the  plaintiff.  Per  curiam.  The  act  for 
the  recovery  of  debts  to  the  value  of  twenty-five  dollars,  gives  a  jus- 
tice power  to  impose  a  fine,  not  exceeding  ten  dollars,  on  a  wit- 
ness who  is  absent,  after  being  subpoenaed,  without  reasonable 
cause.  The  penalty  of  fifty  dollars,  besides  a  further  recompense 
in  damages,  given  by  the  act  for  the  amendment  of  the  law,  evi- 
dently applies  only  to  the  case  of  witnesses  making  default  in 
courts  of  rf-cord.  It  is  made  a  question,  therefore,  whether 
any  remedy,  besides  the  fine  of  ten  dollars,  is  given  against 
witnesses  making  default  in  justices'  courts.  But  when  we  con- 
sider that  the  fine,  in  such  case,  does  not  go  to  the  party  aggriev- 
ed, but  to  the  poor  of  the  town,  there  must  be  a  remedy  to  the 
parly  for  the  injury  he  sustains,  and  which  ought  to  be  by  a  spe- 
cial action  on  the  case  for  damages.  The  suit  in  this  case, 
therefore,  was  well  brought.  The  case  then  turns  upon  the  pro- 
ceedings in  the  cause.  The  defendant  was  not  bound  to  attend, 
unless  regularly  subpoenaed  as  a  witness ;  and  as  the  plaintiff  ad- 
mitted that  he  had  the  subpcena  in  ,his  possession,  it  ought  to 
have  been  produced  as  the  highest  evidence  of  the  fact.  The 
confession  of  the  party  will  not,  in  such  a  case,  supply  the  omis- 
sion of  such  a  document  The  proof  produced  was  very  feeble, 
but  here  was  a  fatal  error.  The  judgment  must  therefore  be  re- 
versed. 

One  justice  may  subpcena  witnesses  to  appear  before  another 
justice,  and  the  attendance  of  witnesses  may  be  compelled  from 
an  adjoining  county. 

"  Any  justice  of  the  peace  may  issue  subprenas  to  compel  wit- 
nesses to  appear  before  any  other  justice  and  give  evidence."  s. 
39. 

"  Whenever  a  subpcena  is  issued  by  any  justice  to  compel  the 
attendance  of  any  witness  from  an  adjoining  county,  it  shall  be 
lawful  for  any  constable  or  other  proper  person  of  the  county 
where  such  subposna  is  issued,  to  serve  such  subpoena  on  such 
witness  in  any  adjoining  county  5  and  if  such  witness  shall  mukJe 


JUSTICES  COURTS. 

default  of  appearance  according  to  the  direction  of  such  subpte- 
na,  such  defaulting  witness  may  be  proceeded  against  in  (h<;  coun- 
ty where  such  witness  shall  reside,  or  where  such  subpcena  was 
issued,  in  the  same  manner  as  i»  directed  by  the  tenth  section  of 
this  act,  any  law,  usage  or  custom  to  the  contrary  notwithstand- 
ing." s.  30. 

According  to  the  form  of  the  venire  prescribed  by  the  ninth 
section  of  the  act,  the  jurors  are  required  to  be  freeholders  or 
freemen  of-  the  city,  or  freeholders  of  the  town  where  (he  cause 
is  to  be  tried,  of  kin  to  neither  party,  nor  interested  in  the  suit. 

It  is  not  sufficient  that  a  juror  should  be  a  freeholder,  but  he   Bonf. 

Btf'ckt  r 

must  also  be  a  good  and  lawful  man;  an  alien,  although  a  free-  e  .R>hus.  Rep, 
holder,  is  not  a  good  and  lawful  man,  and  therefore  not  conipe-  332- 
tent  to  serve  on  a  jury. 

If  the  justice  overrule  a  challenge  to  a  juror,  and  the  party  p,iaue  v. 
goes  to   trial    on    the    merits,  it  is  no  waiver  of  the  exception,  i^,^1^*., 
nor  does  it  preclude  him  from  taking  advantage  of  it  in  error.         3ie. 

Further  and  more  particularly  as  to  challenges,  see  JURY. 

The  justice  before  whom  the  cause    is  tried  must  swear  the   Perry  r. 
witnesses  ;  and  where   the  justice   before   whom  the  cause  was  ^jo'hm!' 
tried  was  sworn  by  another  justice,  as  witness  in  the  cause,  the   R*-i»-  «o. 
judgment  was  reversed  :  but  if  no  objection  were  made  to  the  c.°w»  T- 
admission  of  the  magistrate  as  a  witness,  it  will  be  taken  to  have  s  JuiiutRep. 
been  by  consent.  470' 

In   an  action  before  a  justice,   in  a  case  in  which  an  adjourn-  irwin  v. 
ment  had  been  granted  at  the  instance  of  the  defendant,  th<-,  de-  £jX«!iien, 
fendant,  at  the  trial,  called  the  security  as  a  witness,  and  prayed  407. 
that  he  might  be  discharged  as  security,  and  another  person, 
then  offered,  be  taken  in  his  stead  ;  but  the  motion  was  denied, 
and  the  witness   rejected.     Ptr   curium.     The  justice  ought  to 
have  released  the  bail,  by  taking  the  other  security  offered.     It 
would  be  unreasonable  and  unjust  to  deprive  the  party  of  the  be- 
nefit of  a  material  witness,  when  his  interest  can  be    thus  dis- 
charged without  injury  to  the  other  party.     Sound  and  legal  dis- 
cretion required  that  it  should  be  done.     It  is  the  practice  for  the 
court  to  discharge  the  bail  upon  application,  when  he  is  wanted 
as  a  witness  for  the  defendant. 

"Where,  a  justice  stated  in  his  return,  that  he  admitted  one  of  Harwilv. 
llie  parties  as  a  witness  de  benc  esse,  but  that  he  afterwards  disre- 


garded  the  testimony,  not  considering  it  as  evidence  in  the  cause,   Utl>-  128* 
the  judgment  was  reversed. 

In  an  action  on  a  promissory  note,  the  justice  returned  to  the   £ar^!\, 
rtrtiorari  that  the  note  was  delivered  to  him  by  the  plaintiff  when   lojohn*.' 
the  issue  was  joined  ;  but  that  on  search  he  could  not  find  it,  and   ReP«31"- 
that  he  permitted  the  plaintiff  to  give  parol  evidence  of  the  note, 
though  the  defendants  objected  to  it.     Per  curiam.    The  justice 
erred  in  admitting  parol  proof  of  the  note,  as  a  lost  note,  when 
there   was  no   proof  of  its  being  lost.     What  the  justice  might 
h:»vp  «••>:<!  :t«  to  fbr  '  »1  evidence  to-  the  jury.     It 


264 


Deyer  T. 

Burliug;liam, 

2  Jo'im.Ucp. 

185. 

1,.,   i    •  v. 

Smith 

10  Johns. 

Ri'l>.  2iO. 

Vai    Myck 

v.  'lay lor, 

9  Jolms.  Hep. 

146. 


Wearsey  r. 

Prn>n, 

7  Johns.  Rep. 

179. 


House  v. 

Low, 

UJohus.Rep. 

378. 


Day  v. 

Wilber, 

2  Caines' 
Hep.  135. 

Van  Doren 
v.  Walker, 

3  Caines' 
Ri  p.  37J. 


Kast<  nbrooU, 
!  I  Julius. 
Rep.  533. 


Fink  v.  Hall, 
8  Johns.  Key. 
437. 


JUSTICES  COURTS. 

was  requisite  that  proof  on  oath  should  have  been  given  of  (lie 
loss  of  the  note,  In: fore  the  secondary  evidence  could  he  let  in. 

A  justice  cannot  act  from  his  own  previous  knowlt  »lge  of  facts, 
but  they  must  he  proved  before  him  ;  lie  can  only  decide  upon 
evidence  produced  in  court. 

The  admission  of  improper  evidence  must  be  objected  to  at 
the  trial,  afterwards  it  will  come  too  late  ;  so,  where  in  an  action 
of  debt  against  a  constable  for  an  escape  on  execution,  parol 
evidence  was  given  of  the  execution,  and  no  objection  was  made 
to  it,  the  defendant  below  moved  for  a  nonsuit,  but  on  what 
ground  was  not  stated,  and  the  justice  denied  the  motion.  The 
court  said,  the  objection  now  raised  against  the  admission  of  pa- 
rol evidence  of  the  execution  comes  too  late  ;  it  would  have  been 
valid  had  it  been  made. on  the  trial,  but  no  such  objection  ap- 
pears to  have  been  made  ;  and  we  cannot  intend  for  the  purpose 
of  reversing  a  judgment,  that  this  framed  the  ground  of  a  mo- 
tion for  a  nonsuit.  All  intendments  ought  to  be  in  support  of  the 
judgment. 

if  a  plaintiff  reads  in  evidence  an  act  of  the  legislature  from  a 
newspaper,  which  is  admitted  by  the  justice,  and  the  defendant 
afterwards  reads  an  exemplified  copy  of  the  same  act,  he  can- 
not afterwards,  on  certiorari,  allege  for  error  the  admission  of  the 
act  read  by  the  plaintiff,  though  not  legal  evidence:  it  has  fre- 
quently been  ruled  that  a  party  may  thus  commit  himself  by  le- 
galizing what  was  before  illegal. 

On  the  return  of  a  certiorari,  it  was  objected  that  it  did  not  ap- 
pear that  the  witnesses  were  sworn  ;  but  the  court  said,  that  as 
both  parties  were  present,  and  no  objection  was  made  to  the 
witnesses,  we  shall  intend  that  they  were  sworn.  If  they  were 
not  sworn,  it  may  be,  that  the  parties  agreed  to  admit  their  testi- 
mony without  oath. 

If  the  jury  retire  to  deliberate  on  their  verdict,  and  a  consta- 
ble be  not  sworn  to  attend  them,  it  is  error. 

In  error  on  certiorari,  it  was  not  stated  in  the  return  that  a 
constable  was  sworn  to  attend  the  jury.  Per  curiam.  As  no- 
thing is  said  about  a  constable's  being  sworn,  or  having  charge  of 
the  jury,  the  court  cannot  supply  it  by  intendment.  There  are 
no  words  in  the  return  to  intend  by.  We  might  as  well  intend 
an  issue  joined,  or  a  venire,  when  nothing  is  stated.  The  justice 
must  state,  as  the  writ  requires  it,  all  his  proceedings ;  the 
whole  history  of  the  suit.  "Where  a  proceeding  so  essential  is 
omitted,  we  cannot  consider  it  as  done. 

This  objection  cannot  be  surmounted  ;  it  grows  out  of  the  po- 
sitive direction  of  the  statute,  that  a  constable  shall  be  sworn  to 
attend  the  jury.  This  is  not  an  omission  or  misrecital  of  an  oath 
merely,  so  as  to  bring  the  case  within  the  proviso  to  the  17th 
section  of  the  act. 

If  the  jury  do  not  withdraw  from  the  court,  it  is  unnecessary  to 
swear  a  constable. 


JUSTICES  COURTS.  265 

If  it  appear  from  the  return,  that  a  person,  not  a  constable,  was  St«icy  v.Bar- 

s\vorii  to  attend  the  jury,  it  is  a  fatal  error.  2  cainer 

HI- p.  221. 

XIII.    Verdict  and  nonsuit, 

A  verdict  of  no  cause  of  action  is  equivalent  to  a  verdict  for  Feiter  v. 
the  defendant,  and  the  justice  is  bound  to  give  judgment  accord-  aJohl'iiTuep. 
ingly.  »». 

So,  if  the  jury  find  a  verdict  for  the  defendant  for  damages  and  Goodenow  v. 
costs,  where  the  defendant  was  not  entitled  to  damages,  by  rea-  3  jolml.  Hep. 
son  of  a  set-off,  the  damages  and  costs  are  to  be  rejected,  and  the  437> 
verdict  entered  as  a  general  verdict  for  the  defendant. 

In  an  action  before  a  justice,  a  verdict  was  found  for  the  de-  nurgerv. 
fendant,  for  twenty-five  cents,  with  six  cents  costs :  the  defendant  4VjoUlUs.hRCp. 
remitted  the  twenty-five  cents,  and  the  justice  entered  the  re-  414- 
mitti'ur,  and  gave  judgment  generally  for  the  defendant,  and  the 
judgment  was  affirmed.  SPENCER,  J.  If  a  jury  in  this  court 
should  give  the  plaintiff  more  damages  than  he  claims  by  his  de- 
claration, there  would  be  no  hesitation  in  allowing  a  remillitur  of 
the  surplus,  beyond  the  damages  laid  in  the  declaration.  So,  if 
in  an  action  in  which  the  defendant  was  not  entitled  to  damages, 
the  jury  should  give  him  damages,  I  see  no  reason  why  he  should 
not  be  allowed  to  remit  them.  A  remittitur  would  be  permitted 
in  both  cases,  on  the  principle,  that  a  party  in  whose  favour  a 
sum  is  found,  has  a  right  immediately  to  cede  it  to  the  other 
party;  and  that  the  mistake  of  a  jury,  which  can  be  corrected  by 
the  act  of  the  party  in  whose  favour  it  is  made,  and  which  mis- 
take is  not  imputable  to  him,  shall  work  no  prejudice.  It  was  ob- 
viously the  intention  of  the  legislature,  to  take  away  all  right 
from  the  justice,  to  control  or  set  aside  the  verdict  of  a  jury :  it 
would  be  an  unnatural  and  violent  construction,  to  say  that  the 
legislature  meant  to  oblige  the  justice  to  give  judgment  in  favour 
of  a  party,  nolens  volens. 

Before  the  verdict  is  delivered,  the  plaintiff  has  a  right  to  with-  y'*".v' 
draw  and  submit  to  a  nonsuit,  and  if  he  does,  the  verdict  ought  sjahm.  Rep. 
not  to  be  received.  346' 

Where  there  is  a  trial  without  a  jury,  the  plaintiff  may  elect  to  ?e"v* 
become  nonsuit  at  any  time  before  the  cause  is  finally  submitted  11  Johns.' 
to  the- justice  :  but  after  it  is  so  submitted,  the  statute  is  impera-  R*P>457« 
live,  that  after  hearing  and  examining  the  proofs  and  allegations, 
the  justice,  within  four  days,  shall  give  judgment  thereon. 

The  justice  may  continue  his  court  from  one  day  to  the  next,  Day  v. 'Wit- 
when  the  exigencies  of  the  case  require  it.  2  c'ainei' 

XIV.  Judgment. 

By  the  second  section  of  the  act,  the  justice  is  bound,  where  the 
cause  is  tried  before  him  without  a  jury,  to  give  his  judgment, 
agreeable  to  law  and  equity,  within  four  days  thereafter,  with  costs 


JUSTICES  COURTS, 

of  suit:  and  we  have  seen  that  when  the  cause  has  been  tried  be- 
fore a  jury i  the  justice  is  bound  to  give  his  judgment  according  to 
their  verdict.  The  manner  in  which  the  justice  must  proceed  t» 
give  judgment  by  default,  in  case  of  the  nun-appearance  of  the 
defendant,  has  also  been  noticed. 

fiwfcingr.  The  judgment  must  state  that  it  was  given  on  hearing  the 
rCMme*1  proofs  and  allegations  of  the  parties,  otherwise  it  will  be  erro- 
iuj>.  96.  neons. 

smith  r..  In  an  action,  by  an  administrator,  before  a  justice,  for  a  debt 

w'johns  ^UC  h's  "'testate,  the  defendant  pleaded  the  general  issue,  and 
Rni.366,  gave  notice  of  a  set-off,  and  the  justice  gave  judgment  for  the  de- 
fendant for  ten  dollars,  the  amount  of  the  set-off.  The  decision 
of  tin1  justice  was  held  correct,  notwithstanding  a  judgment  for 
ten  dollars,  with  costs,  was  rendered  absolutely  against  the  plain- 
tiff, by  which  L-  may  be  personally  chnrged.  On  examining  the 
act,  it  appears  that  jurisdiction  is  expressly  given  where  an  ad- 
ministrator or  executor  is  plaintiff;  and  in  all  cases  cognisable  nn 
der  the  act,  the  defendant  is  entitled  to  his  set-off,  and  the  judg 
ment,  when  for  the  defendant,  is  to  be  peremptory.  The  hard- 
ship to  which  the  plaintiff,  as  administrator,  may  be  exposed,  by 
being  made  personally  liable  for  the  judgment,  results  from  the 
provisions  of  the  act,  and  is  not  to  be  avoided  when  an  executor 
or  Administrator  sues  before  a  justice. 

T(i»T'hi  r.  Where  a  defendant  appears  in  person   or  by  attorney,  before 

fi  toii'ii*.  Rep.  a  justice,  '">  court,  and  confesses  judgment,  the  justice  may  enter 
i26<  judgment  against  him.  But  where  the  justice,  on  receiving  a  pa- 

|M;r,  together  with  a  note,  purporting  to  be  signed  by  the  defen- 
dants, authorising  him  to  confess  judgment,  and  the  justice,  from 
his  knowledge  of  the  hand-writing  of  the  defendants,  and  without 
any  process  or  other  proof,  entered  a  judgment,  by  confession,  i'or 
the  pfaintiffs,  it  was  reversed.  The  court  said  :  the  justice  could 
not  legally  enter  a  judgment,  unless  the  defendant  appeared  in 
person  or  by  attorney,  before  him,  in  court,  and  confessed  judg- 
ment, or  had  been  duly  summoned,  as  in  ordinary  cases, 
to]?  v.  Where  the  defendant  indorsed  on  the  warrant  a  written  request 

3  MIHS. Uep.  to  the  justice,  to  enter  up  judgment  against  him,  for  whatever 
lt'f-  demand  the  plaintiff  should  have  against  him,  to  the  satisfaction 

of  the  justice,  but  afterwards  called  on  the  justice  and  desired 
him  not  to  enter  judgment,  as  he  had  discovered  that  the  plain- 
tiff claimed  a  greater  sum  than  was  due,  but  the  justice,  notwith- 
standing, entered  up  judgment  on  the  confession,  the  judgment 
was  reversed.  Per  curiam.  The  authority  to  the  justice  to  en- 
ter up  the  judgment  must  be  considered  as  a  parol  authority,  and 
revocable  by  the  defendant.  What  he  stated  to  the  justice 
amounted  to  a  revocation,  and  a  trial  ought  to  have  been  had,  to 
ascertain  the  amount  due  to  the  plaintiff. 

£;»Me»ie  T.  Where,  on  the  promissory  note  upon  which  the  action  was 
£ Miits. Rcpi  brought,  a  requsst  was  endorsed  by  the  defendants,  to  enter 
1"1;>-  op  judgment  against  them,  on  which  the  justice  gave  judg- 


JUSTICES  COURTS.  267 

ment,  being,  as  he  said,  satisfied,  by  comparing  the  hand-writing 
in  the  note  and  the  endorsement,  that  they  were  the  same,  it  was 
held  that  the  justice  should  have  required  proof  of  the  note,  or 
confession,  and  could  not  give  judgment  on  a  comparison  of  the 
hand-writing  of  the  endorsement  with  the  signatures  of  the  note, 
especially  as  he  had  IK>  evidence  that  the  signatures  to  the  note, 
were  in  the  hand-writing  of  the  defendants. 

By  the  1  1th  section  of  the  act,  "  Jf  the  plaintiff  in  any  swcti  ae- 
tion  shall  be  nonsuited,  or  discontinue  or  withdraw  his  action 
without  the  consent  of  the  defendant,  then  judgment  shall  In- 
given  against  su«h  plaintiff  for  the  costs  accrued  ;  or  if  he  shall  be 
found  to  be  indebted  to  the  defendant,  then  judgment  shall  be 
given  against  him  for  the  defendant,  or  damages  and  costs,  as  the 
case  may  require." 

Where  the  plaintiff  is  nonsuited,  judgment  for  costs  must  be   MonneJU. 
given  against  him,  otherwise  the  judgment  is  incomplete,  and  in-  sjtluulfUy. 
capable  of  being  either  reversed  or  affirmed. 

XV.  Execution, 

«  And  whenever  judgment  shall  be  given  against  either  plaintiff 
or  defendant,  the  said  court  shall  grant  execution  thereupon,  di- 
rected to  any  constable  within  the  same  county,  commanding  him 
to  levy  the  debt,  or  damages  and  costs,  of  the  goods  and  chattels 
of  the  person  against  whom  such  execution  shall  be  granted,  his 
arms  and  accoutrements  excepted,  and  to  bring  the  money,  at  a 
certain  time  and  place  therein  to  be  mentioned,  before  the  justice 
who  issued  the  execution,  to  render  to  the  party  who  recovered 
the  same  ;  and  if  no  goods  or  chattels  can  be  found,  or  not  suffi- 
cient to  satisfy  such  execution,  the  party  recovering  the  judgment 
may,  from  time  to  time,  renew  such  execution,  or  have  further  ex- 
ecution against  the  goods  and  chattels  of  the  party  against  whom 
tmch  judgment  is  recovered,  or  may  bring  an  action  of  debt  there- 
on, and  shall  further  command  the  said  constable  to  take  the 
body  of  the  defendant,  and  convey  him  to  the  keeper  of  the  com- 
mon gaol  of  the  county,  there  to  remain  tiH  such  execution  shall 
be  satisfied  and  paid  ;  and  it  shall  be  the  duty  of  each  and  every 
constable  to  endorse  on  every  execution  the  time  of  levying  the 
same:  Provided,  however,  That  if  the  defendant  shall,  on  the  hear- 
ing of  the  cause,  prove  by  his  own  oath  w  otherwise,  to  the  satis- 
faction of  such  justice,  that  he  has  a  fam'rly  in  this  state  for  which 
he  provides,  and  is  net  a  freeholder,  then  the  justice  shall,  at  the 
time  of  issuing  s«ch  execution,  endorse  such  proof  thereon,  (ex- 
cept in  the  case  of  a  trespass  proved  on  the  trial  to  have  been 
wilful  or  malicious)  and  such  defendant  shall  not  be  imprisoned 
on  any  execution  so  endorsed,  if  within  one  month  after  judg- 
ment, the  said  defendant  shall  pay  to  such  constable  one  doiiav 
and  fifty  cents,  if  so  much  be  due  thereon  ;  and  the  like  sum  in 
and  every  raonth  thereafter,  until  the  executioa  and  the 


268  JUSTICES   COURTS. 

constable's  fees  are  fully  paid  ;  but  if  such  defendant  shall  neglect 
or  refuse  to  make  such  monthly  payment,  it  shall  be  the  duty  of 
such  constable  to  proceed  in  such  manner  as  if  no  such  endorse- 
ment had  been  made  on  such  execution :  dnd  further,  That  no 
execution  of  any  judgment  given  by  virtue  of  this  act  shall  issue 
against  an}'  freeholder  or  inhabitant  having  a  family,  and  not  enti- 
tled to  such  exemption,  in  less  than  thirty  days  after  giving  the  said 
judgment,  unless  the  party  in  whose  favour  judgment  shall  be  giv- 
en, shall  make  it  appear  to  the  satisfaction  of  the  said  justice,  on 
his  own  oath,  or  the  oath  of  some  other  person,  that  such  plaintiff 
will  be  in  danger  of  losing  the 'debt  or  damages,  if  such  delay  be 
allowed  ;  in  which  case  the  said  justice  shall  issue  execution  im- 
mediately, as  herein  before  directed,  unless  the  party  against 
whom  such  judgment  shall  be  given,  shall  thereupon  give  security 
to  the  party  in  whose  favour  judgment  was  given,  that  he  will  pay 
the  debt,  or  damages  and  costs,  before,  or  at  the  expiration  of 
thirty  days."  s.  11. 

"The  constable,  after  taking  such  goods  and  chattels  into  his 
custody  by  virtue  of  such  execution,  shall  immediately  give  pub- 
lic notice,  by  advertisement  signed  by  himself,  and  put  up  at  three 
public  places  in  such  city  or  town  where  such  goods  and  chat- 
tels shall  be  taken,  of  the  time  and  place  within  such  city  or 
town,  when  and  where  they  will  be  exposed  to  sale,  at  least  five, 
days  before  the  time  appointed  for  selling  them,  and  therein  de- 
scribe the  goods  and  chattels  so  taken  ;  and  at  the  time  and  place 
so  appointed,  and  the  said  goods  and  chattels  being  present,  shall 
expose  them  to  sale  at  public  vendue  to  the  highest  bidder,  and 
pay  the  debt  or  damages  and  costs  levied  to  the  justice  who  is- 
sued the  execution,  returning  the  overplus,  if  any,  to  the  owner; 
and  for  want  of  goods  and  chattels  whereon  to  levy,  the  said  con- 
stable shall,  according  to  the  tenor  of  the  said  execution,  take  the 
body  of  the  person  against  whom  the  said  execution  shall  be 
granted,  and  convey  and  deliver  him  to  the  keeper  of  the  com- 
mon gaol  of  the  city  or  county ;  and  in  case  the  person  against 
whom  such  execution  shall  issue,  be  a  freeholder,  such  keeper  is 
hereby  commanded  to  keep  such  person  in  safe  custody,  in  the 
common  gaol  aforesaid,  until  the  debt  or  damages,  with  costs, 
shall  be  fully  paid ;  and  in  case  any  such  person,  having  a  family 
in  this  state,  and  not  being  a  freeholder  at  the  time  of  judgment 
rendered  against  him,  or  at  any  time  thereafter,  who  now  is,  or 
shall  be  hereafter  imprisoned  under  this  act,  and  shall  have  re- 
mained in  prison  for  more  than  thirty  days,  and  any  person  not 
having  a  family,  and  not  being  a  freeholder  at  the  time  of  judg- 
ment rendered  against  him,  or  at  any  time  thereafter,  and  who 
now  is,  or  hereafter  shall  be  imprisoned  under  this  act,  and  shall 
have  so  remained  in  prison  for  more  than  sixty  days,  shall  in 
either  case  be  discharged  from  prison,  on  the  executions  issued 
under  this  act :  Provided  ahoays.  That  before  such  person  shall  be 
entitled  to  his  discharge,  ho  shall  make  affidavit  before  one  of  th« 


JUSTICES  COURTS.  2C9 

justices  of  the  supreme  court,  or  a  commissioner  authorized  to 
take  affidavits  to  be  read  therein,  or  any  of  the  judges  or  assistant 
justices  of  any  court  of  common  pleas,  or  any  justice  of  the  peace, 
(who  are  hereby  required  to  take  siu  h  affidavits,)  that  he  comes 
within  ihe  provisions  of  this  act,  which  affidavit  shall  be  taken  in 
the  presence  of  the  sheriff,  or  any  one  of  his  deputies,  or  gaolers, 
who  are  hereby  required  to  attend  for  that  purpose  when  called 
on  by  such  prisoner;  and  on  producing  and  delivering  such  affida- 
vit to  the  sheriff  or  gaoler  of  the  county  where  the  party  shall  be 
imprisoned,  such  party  shall  be  forthwith  discharged  from  prison  ; 
and  in  case  the  sheriff  or  gaoler  shall  refuse  to  discharge  such 
person,  in  manner  aforesaid,  such  sheriff  or  gaoler  shall  be  sub- 
ject to  a  penalty  of  twenty- five  dollars,  to  be  recovered  by  the 
party  grieved,  for  his  own  use,  with  costs,  in  any  court  having* 
cognisance  thereof  ;  and  it  shall  be  the  duty  of  the  sheriff  or 
gaoler  to  lile  such  affidavit  in  the  office  of  the  clerk  of  the  county 
in  which  such  party  shall  be  imprisoned,  whose  duty  it  shall  be 
to  file  the  same,  without  demanding  or  receiving  any  fees  there- 
for ;  and  if  any  sheriff  or  gaoler  shall  be  sued  or  prosecuted  for, 
or  by  reason  of  any  discharge  under  this  act,  he  may  plead  the 
general  issue,  and  give  this  act  and  the  special  matter  in  evi- 
dence in  full  justification  and  defence  :  Provided  further,  That  no 
discharge  of  any  person  under  this  act  shall  in  any  wise  affect  or 
prejudice  any  judgment  or  execution  against  the  goods  and  chat- 
tels of  such  person:  And  provided  also,  That  if  any  person  shall 
•wilfully,  falsely  and  corruptly  make  an  oath  or  affidavit,  required 
by  this  act,  he  shall,  on  conviction  thereof,  in  any  court  having 
cognisance  thereof,  suffer  the  pains  and  penalties  inflicted  ou  per- 
sons guilty  of  wilful  and  corrupt  perjury,  and  shall  also  be  subject 
to  be  taken  in  execution  at  the  suit  of  the  party,  in  like  manner  as 
if  he  never  had  been  discharged  under  this  act."  s.  12. 

"In  case  any  constable,  to  whom  any  execution  shall  be  de- 
livered, shall  not,  within  twenty  days  after  receiving  such  execu- 
tion, levy  the  same  on  the  goods  and  chattels  of  the  person  against 
whom  such  execution  shall  be  granted,  arid  in  ten  days  thereafter 
pay  the  debt  and  costs,  so  levied,  into  the  hands  of  the  justice  who 
issued  the  same  ;  or,  in  case  of  his  death  or  removal  from  office. 
to  the  person  in  whose  favour  the  execution  was  granted  ;  or  if  no 
goods  or  chattels  can  be  found  whereon  to  levy,  then,  if  the  said 
constable  shall  not,  if  such  execution  require  it,  take  the  body  of 
the  person  against  whom  such  execution  was  granted,  if  to  be 
found,  and  deliver  him  or  her  to  the  keeper  of  the  common  gaol 
of  the  county,  within  thirty  days  from  the  receipt  of  such  execu- 
tion as  aforesaid  ;  then,  and  in  every  such  case,  the  said  constable 
shall  be  holden  to  pay  the  amount  of  such  execution,  to  be  re- 
covered by  an  action  of  debt,  with  costs,  by  the  person  in  whose 
favour  such  execution  was  granted,  in  which  case  execution  shall 
issue  forthwith  against  such  constable:  Provide d,  That  no  con- 
stable shall  be  liable,  under  this  clause,  for  not  returning  an  ex- 


270 


TinUom  T. 
PanlT, 
•9  Joans. 
Rep.  345. 


BIsnchard 
Myen. 
9  Johns. 
Rep.  66. 


Van  Sh-tk 
Tartar, 

9  Johns. 
Rep.  146. 


9'KTCf  T. 
Hobtard, 
10  Johns. 
Hep.  405. 


JUSTICES  COURTS. 

ecution  on  which  the  defendant's  exemption  is  endorsed,  if  he  col- 
lects and  returns  the  money  payable  by  instalments,  or  returns 
the  execution,  as  to  person  and  property,  not  found."  s.  1 3. 

"  No  constable  shall  levy  or  collect  the  amount  of  any  execu- 
tions issued  by  virtue  of  this  act,  unless  the  same  be  collected 
•within  the  time  specified  by  the  preceding  sections,  or  unless  the 
said  executions. shall  be  renewed,  except  in  the  cases  mentioned 
in  the  proviso  in  the  preceding  section."  s.  14-. 

A  sale  under  an  execution  on  a  judgment  in  a  justice's  court 
may  be.  adjourned  at  the  discretion  of  the  officer  ;  and  the  comple- 
tion of  the  sale  at  a  different  time  and  place  will  be  valid,  if  there 
be  no  fraud  er  abuse. 

A  cfrtiorari  allowed  after  execution,  begun  to  be  executed 
by  the  constable,  is  no  svptrsedeai  to  the  execution.  The  same 
rule  applies  as  to  cases  arising  under  justice's  judgments  and  exe- 
cutions which  exists  as  to  other  court?,  when  a  regular  writ  of 
error  is  allowed ;  and  it  is  weH  settled,  that  the  allowance  of  a 
\vrit  of  error,  after  the  sheriff  has  levied  under  a  Jitri  facias,  is  no 
svptrsfdcas  to  it. 

In  an  action  of  debt  before  a  justice,  against  a  constable,  for  an 
escape  of  a  prisoner  in  execution,  it  was  proved  that  while  the 
defendant  had  the  prisoner  in  his  custody,  and  was  conveying  him 
to  prison,  be  met  the  justice  who  issued  tht  execution,  and  who, 
after  some  conversation,  required  the  defendant  to  deliver  him 
the  execution,  which  was  done,  and  the  justice,  discharged  the 
prisoner.  It  was  held  that  this  was  no  defence  to  the  action. 
The  justice  had  no  authority,  in  his  official  character,  to  order  the 
prisoner  discharged,  and  no  special  power  for  that  purpose  ap- 
pears to  have  been  given  by  the  plaintiff  in  the  execution.  It 
was  therefore  an  act  altogether  unauthorized,  and  will  not  ex- 
cuse the  constable. 

In  an  action  of  trespass  de  bonis  asporiatis,  before  a  justice, 
against  the  defendant,  a  constable,  the  defendant  justified  the  taking 
under  two  executions  against  the  goods  of  the  plaintiff,  delivered  to 
the  defendant  to  be  executed.  The  executions  were  produced,  and 
one  of  them  appeared  to  be  altered  in  its  date  from  the  i^oth 
December,  1810,  to  the  1st  March,  1S1  1  ;  and  the  other  from  the 
1  Uh  December,  1810,  to  the  2d  March,  1811.  The  justice  who 
iefued  the  first  execution,  testified  that  he  might  have  authorized  the 
constable  to  do  it,  as  he  frequently  gave  constables  permisiioa  to 
alter  the  dates  of  executions  at  the  request  of  the  plaintiffs,  con- 
sidering the  alterations  as  tantamount  to  a  renewal.  A  verdict 
•w  as  given  for  the  defendant.  Per  curiam.  The  only  question  in 
this  case  is,  whether  the  executions  under  which  the  defendant 
justified  were  valid.  It  does  not  appear  that  any  thing  had  been 
done  under  the  executions,  until  after  the  alterations  in  the  date 
of  them.  And  if  the  alterations  were  made  by  the  direction 
of  the  justice,  the  process  would  not  thereby  be  invalidated. 
Any  general  authority,  however,  by  justices  to  constables,  to  fill 
irp  or  alter  process,  would  be  void,  and  highly  improper.  It  is  a 


JUSTICES  COURTS'.  271 

practice  which  in  no  case  would  be  prudent  or  discreet  on  the 
part  of  the  magistrate.  Whether  the  alterations  in  the  pre- 
sent case  were  made  by  the  authority  of  the  justices  or  not, 
were  questions  of  fact  for  the  jury  to  decide  ;  and  we  do  not  see 
sufficient  grounds  for  setting  aside  their  verdict. 

The  plaintiff  in  the  court  below  declared  upon  a  promise  made  Good*!*  T. 
to  him  by  the  defendant,  who  was  a  constable,  that  if  the  plain-  2Jobmu' 
tiff,  against  whom  he  had  several  executions  issued  fnom  a  justice's 
court,  would  deliver  property  to  the  defendant  as  security  for  the 
payment  of  the  executions,  the  defendant  would  wait  thirty  days 
before  he  sold  the  property  ;  but  the  defendant,  in  violation  of 
his  promise,  sold  the  property  before  the  expiration  of  thirty  days  ; 
the  court  held  that  the  promise  was  without  consideration  and. 
void,  and  reversed  the  judgment  for  the  plaintiff  below. 

If  a  constable  suffers  the  execution  to  sleep  in  his  hands,  and  Jones  r. 
then  pays  the  amount  of  it  to  the  plaintiff,  without  having  made  J™*",'. 
any  demand  on  the  defendant,  and  without  his  request,  he  cannot  Rep.  43*. 

Menderback 

bring  an  action  against  the  defendant  to  recover  the  amount  so  v.  Hopkim, 

8  Johns. 
Rep.  436. 

A  constable  took  a  pair  of  horses  on  execution  against  B.  and  Brown  T-. 
delivered  them  to  C.  who  gave  a  receipt  for  them,  promising  to  Cork, 
deliver  them  to  the  constable  on  demand  ;  no  demand  was  made,  Rep.  Sei. 
and  after  the  execution  had  expired,  the  constable  brought  an  ac- 
tion of  trover  against  C.  for  the  horses,  and  judgment  was  given 
for  the  plaintiff,  which  was  reversed,  because  the  plaintiff  had  not 
shown  a  demand  of  the  horses  before  suit  brought;  and  because 
he  ought  to  have  demanded  them,  and  levied  the  amount  of  the 
execution,  by  sale,  within  the  thirty  days.     He  neglected  to  do 
this,  and  suffered  the  execution  to  run  out,   and  thereby  lost  all 
just  claim  and  title  to  the  possession  of  the  horses. 

By  the  act  for  the  amendment  of  the  law,  sect.  34,  it  is  pro-  IR.L.SJT. 
vided,  "  That  no  female  person  shall  be  imprisoned  upon  execu- 
tion, in  any  civil  action  for  debt  or  damages  hereafter  to  be 
brought  in  any  court  whatsoever,  in  which  the  debt  or  damages 
recovered  shall  not,  exclusive  of  costs,  amount  to  more  than  fifty 
dollars.1' 

The  sheriff  is  bound,   of  course,  to  discharge  a    defendant   in 
execution,  on  producing  the  affidavit  required  by  the  act. 

Jones  sued  S.  and  A.  Lohnis  in  covenant  on  a  bond,  in  the  pe-  £0uni»  T. 
nalty  of  thirty-six  dollars,  conditioned  for  the  gaol  liberties,  for  A.  j^J; 
Lohnis.     It  appeared  in  evidence  that  A.  Lohnis  was  committed  Rep.  i?4 
to  prison,  under  an  execution,  on  the  1 5th  of  Jtine,  and  on  the 
1 5th  of  July  was  discharged  by  the  sheriff,  upon  an  affidavit  made 
by  the  prisoner,  conformably  to  the  act,  that  he  had  a  family,  was 
not  a  freeholder,  and  that  he  had  been  in.  prison  more  than  thirty 
days.     The  justice,  however,  gave  judgment  against  the  defend- 
ant,  for  eighteen  dollars  and  seventy-seven  cents,  on  tbe  ground 
that  A.  Lohnis  had  not  remained  in  prison  more  than  thirty  days  • 
but  the  judgment  was  reversed.     Per  curiam.     It  is  admitted 


272  JUSTICES  COURTS. 

that  the  affidavit  upon  which  the  prisoner  was  discharged,  was, 
in  point  of  form,  conformable  to  the  directions  of  the  act,  though 
from  the  evidence,  it  appeared  that  he  had  not  been  in  prison  more 
than  thirty  days.  And  the  question  is,  whether  the  sheriff'  was 
bound  to  discharge  the  prisoner  upon  the  production  of  his  affida- 
vit;  for  if  it  was  his  duty  so  to  do,  the  prisoner  was  discharged 
by  due  course  of  law,  within  the  condition  of  the  bond.  The  act 
appears  to  be  imperative  upon  the  sheriff;  it  declares  "  that  on  pro- 
ducing and  delivering  such  affidavit  to  the  sheriff  or  gaoler  of  the 
county  where  the  party  shall  be  imprisoned,  such  party  shall  be 
forthwith  discharged  from  prison."  The  statute  makes  the  affidavit 
the  authority  upon  which  the  sheriff  is  to  act,  and  does  not  leave  it 
open  to  him  to  judge  whether  it  is  true  in  point  of  fact.  That 
this  is  the  construction  to  be  given  to  the  act  is  evident  from  the 
last  proviso,  which  subjects  the  party  to  the  pains  and  penalties  of 
perjury  for  false  swearing,  and  makes  him  liable  to  be  again  taken 
in  execution,  as  if  he  had  never  been  discharged. 

"  It  shall  be  lawful  for  any  justice  of  the  peace  who  shall  hefe- 
after  render  any  judgment  in  any  cause,  and  who  shall,  before  the 
collection  of  the  money  due  thereon,  be  removed  from  office,  to 
issue  an  execution  thereon,  at  any  time  within  thirty  days  after 
such  removal,  which  execution  shall,  to  all  intents  and  purposes, 
be  .as  valid  and  effectual  as  if  such  removal  had  not  been  made." 
s.  22. 

XVI.     Proceedings  against  joint  debtors. 

"  Every  summons  or  warrant,  to  be  issued  by  virtue  of  this  act, 
may  issue  against  any  joint  debtors,  in  the  same  manner  as  against 
individual  debtors  ;  and  in  case  the  same  be  duly  served,  in  man- 
ner herein  before  directed,  upon  either  of  such  joint  debtors,  such 
joint  debtor  on  whom  the  same  shall  be  so  served,  shall  answer  to 
the  plaintiff,  and  the  judgment  shall,  in  such  case,  be  against  the 
joint  debtor  or  debtors  on  whom  the  same  was  so  served,  and 
against  the  other  joint  debtor  or  debtors  named  in  such  summons 
or  warrant,  in  the  same  manner  as  if  such  process  had  been  duly 
served  on  all  such  debtors  :  Provided,  however,  that  no  execution 
shall  issue  against  the  body,  or  against  any  goods  and  chattels, 
the  sole  property  of  any  debtor,  on  whom  process  was  not  duly 
served  as  aforesaid."  s.  16. 

Kutchiusv.         Where  a  justice  issued  a  warrant  against  two  defendants,  one 
J'johns.          °f  whom  was  taken,  and  the  other  returned  not  found,  and  the 
Rep.  222.       defendant  taken  pleaded  to  the   action,  and  a  venire  was  issued, 
which  named  him  alone,  without  taking  notice  of  the  other  de- 
fendant; the  venire  was  held  sufficient.     The  statute  merely  re- 
quires that  the  judgment  must  be  against  both  joint  defendants, 
"and  is  silent  as  to  the  intermediate  proceedings. 


JUSTICES  COURTS. 


XVII.  Ceriiorari. 

'rNo  judgment,  order,  or  proceeding  whatsoever,  to  be  had  or 
made  by  virtue  of  this  act,  shall  be  removed  by  any  writ  of  er- 
vor  or  lalse  judgment  :  And  further,  no  justice  of  the  supreme 
court  shall  allow  any  certiorari,  or  other  process,  to  remove  the 
same,  unless  the  party  applying  for  such  certiorari  shall,  within 
thirty  days  after  such  judgment  given,  make  affidavit,  satisfying 
such  justice  of  the  supreme  court  that  there  is  reasonable  cause 
for  granting  such  certiorari  for  error  in  such  judgment,  which  shall  be 
specified  in  such  affidavit,  and  within  ninety  days  thereafter,  cause 
such  affidavit  to  be  presented  to  such  justice  of  the  supreme  court, 
and  which  affidavit  may  be  made  before  any  person  authorised 
to  take  affidavits,  to  be  read  in  the  supreme  court  ;  and  such  afii  - 
davit  shall  be  left  with  the  justice  of  the  supreme  court,  who  may 
allow  such  certiorari  ;  and,  if  any  certiorari,  or  other  writ,  shall 
be  granted  or  issued,  otherwise  than  is  above  mentioned,  the. 
same  shall  be  void  :  And  further,  no  execution,  upon  any  judg- 
ment to  be  given  by  virtue  of  this  act,  shall  be  prevented  or 
stayed  by  any  certiorari,  or  other  writ,  in  case  the  party  in  whose 
favour  such  judgment  shall  be  given,  shall  give  such  security  as 
may  be  satisfactory  to  the  justice  by  whom  such  judgment  shall 
be  given,  to  restore  the  debt  or  damages  for  which  such  judgment 
shall  be  obtained,  with  the  interest  and  costs,  in  case  the  same 
shall  be  reversed  ;  and  if  any  such  judgment  be  removed  into 
the  supreme  court,  and  be  there  confirmed,  then  the  party  pro- 
curing such  certiorari  shall  pay  to  the  adverse  party  all  costs  of 
defending  such  suit  in  the  supreme  court  ;  and  the  party  entitled 
to  such  costs  shall  and  may  have  execution  for  the  same  out  of 
the  said  supreme  court,  against  the  body  or  goods  and  chattels  of 
the  party  who  ought  to  pay  the  same  ;  but,  if  such  judgment 
shall  be  reversed,  then  the  party  procuring  such  certiorari, 
shall,  in  like  manner,  recover  his  or  her  costs  :  Provided  al- 
wa.ys,  that  in  all  cases  of  judgment,  removed  by  certiorari  a3 
aforesaid,  the  supreme  court  shall  proceed  and  give  judgment 
according  as  the  very  right  of  the  case  shall  appear,  without  re- 
garding any  imperfection,  omission,  or  defect  in  the  proceedings 
before  the  court  below,  in  mere  matters  of  form  ;  and  that  so 
much  of  the  act,  entitled,  'An  act  concerning  amendments  and 
i>:ofail3,'  as  may  be  applicable,  shall  be  deemed  at  all  times  to 
apply  as  fully  to  judgments  and  proceedings  under  this  act,  as  to 
judgments  and  proceedings  in  any  court  of  record  in  this  state  ; 
Jlnd  provided  further,  that  the  omission  or  mis-recital  of  any  oaths 
prescribed  by  this  act,  in  the  return  of  any  justice  to  a  certiorari, 
shall  not  be  assigned  for  error,  unless  it  shall  be  alledged  in  the  affi 
davit,  on  which  such  certiorari  issued,  that  exception  to  the  form 
of  any  such  oath,  as  administered,  shall  have  been  taken  at  thft 
tffal."  s.  17. 

(  35  ] 


274  JUSTICES  COURTS. 

"  In  all  cases  where  the  judgment,  before  any  justice  of  the 
peace  in  any  city  or  county  in  this  state,  shall  be  removed  by 
certiorari  to  the  supreme  court,  the  plaintiff  in  error  shall  recover 
;v  sum  not  exceeding  twenty-five  dollars  for  costs,  to  be  taxed  on 
the  reversal  of  any  judgment  so-  removed:  as  aforesaid  ;  and  the 
clerks  of  the  supreme  court  shall,  in  such  case,  receive  for  servi- 
ces done  therein,  no  more  than  such  fees  as  are  uMowed  to  clerks 
of  courts  of  common  pleas  in  atialagous  cases."  3.  18. 

"  On  the  service  of  any  ceriiorari,  to  reverse  any  judgment  ren- 
dered in  pursuance  of  this  act,  it  shall  be  the  duty  of  the  party 
serving  the  same,  to  deliver  at  the  same  tinav  to  the  justice  a  copy 
af  the  affidavit  on  which  the  ctrtiorari  was  procured,  and  the  jus- 
tice shall  make  a  special  return  a&  to  all  the  facts  stated,  in  such 
affidavit,  with  a  copy  thereof,  and  a-an«x  the  same  to  the  writ  of 
certiorari."  s.  '20. 

Smith  r.  A  ccrtiorari   will  1m  fco  reverse-  a  judgment  of  nonsuit,  when- 

ajob'us.  costs  are  awarded.. 

Ke:>.  9.  The  party  in  whose  favour  the  judgment  has  be«n  rendered, 

Maraud,  may  bring  a  ceriiorari,  if  the  justice,  by  erroneously  rejecting  evi- 
ftJoinu.  dence,  has  diminished  the  amount  which  the  party  would  have 

Hep.  10».  * 

been  otherwise  entitled  to  recover. 

Bickumv  Where  there  appears  to  be  a  necessity,  or  a  just  cause  for  the 

ftjjfet.  aflidavit  being  made  by  the  rjJtomey  of  the  party,  it  will  be  re- 
Ui-p.  327.  ceived.  Though  every  thing  relating  to  the  merits  or  to  the 
errors  in  the  court  below,  must  be  contained  in  live  a-fStia>yitr  which 
the  statute,  requires  to  be  made  within  thirty  days  after  the  judg- 
ment, yet  a  supplementary  aflidavit,  which  is  merely  explanatory 
of  a  collateral  fact,  maybe  made  after  the  thirty  days. 

Van  Faiu-n  v  The  jiTstiee  is  bounti  to  ol>ey  the  certiorari  at  his  peril.  He  is 
V '"!>. ',!"""'  ""'?  however,  bound1  to  return  any  thing  but  what  can  legally  be 
Ca«  los.  required  of  him,-  notwithstanding  a  command  expressed  in  the  writ. 
Wilson  v.  'f'e  just'wre- is  no4  bound  tee  stale  the  evidence  in.  his  return, 

)••   ri^r,          unless  called  ifpon  to  do  so. 

u..i».  ^9.  A  justice  having  signed  a  retuni  to  a  ccrtiorari,  made  a  supple- 

Rucid  v.          military  return,  after  which  he  made  another  return,,  and  declared 

fjobM.          m'  t'1'11-  I'^turn,  that  the  supplementary  return  was  drawn  in  haste, 

Rqi.  548.        an,|   Was   incorrect,   and   that  the  first  return   was   most  correct. 

The  court  said  that  they  had  no  alternative,  but  must  reject  botb 

supplementary  returns;  but  in  doing  this  they  express  their  strong 

disapprobation  of  the  practice  of  preparing  returns  for  a  justice 

without  his  knowledge  and  request,  and  that  too  by  the  party 

sucing  out  the  ctrtiorari^ 

clT.P<,°nV'  After  notice  o-f  argument  of  a  cause  in  error  on  certiorari,  the 

5.iotMu.Uep.  justice,  on  affidavit  of  imposition  on  him  by  the  attorney,  was  al- 

Imved'  to  apply  for  leave  to  amend  his  return,  on  giving  notice  of 

the  application,  &:e.  to  tho  attorney  of  the  plaintiff  in- error. 

3Caine's  A  justice  may  be   required   to  amend  his  retuni  when   defec- 

sJbJm^Reti    *fve  '  '<>r  wh'"'h  purpose,  the  party  must  move  the  supreme  court 

on   aflidavit  (as  in  other  cases   of  special  motions)  for  an  order 

4;  °.  "!t   el>    °r  rule  on  the  justice  to  aiaend  his  return  in  the  particulars  in 


JUSTICES  COURTS,  275 

it  is  stated  in  the  affidavit  to  be  erroneous  or  deficient,  and 
A  copy  of  this  rule,  cerliiled  by  one  of  the  clerks  of  the  supreme 
rourt,  having  been  personally  served  upon  the  justice,  he  is  bound 
to  obey  it,  or  be  liaWe  to  attachment  for  a  contempt. 

The  supreme  court  are  bound  <to  give  judgment  on  the  return 
of  the  certiorari,  "according  a«   the  very  rigiht  of  the  case  shall 
appear,  without  regarding  any  Imperfection.,  omission   or  defect 
in  the  proceedings,  before  the   court  -below,  in  mere  .matters  of 
form  ;"  they  will  review  the  evidence  stated  m  the  return,  and  if  2.Tohi«.Rop. 
the  demand  be  illegal,  or  the  evidence  insufficieat  to  support  the   j^'n,.Rt.p. 
action,  the  judgment  will  be  reversed,  and  the  court  is  .n<*t  con-   •»"• . 
eluded  as  to  the  facts,  by  the  finding  of  a  jury,   (a)  K«-p'm. 

3  Joins.  K?p. 
140. 

XVIII.  Justices  excused  and  excluded  from  acting. 

"  Nothing  herein  contained  shall  extend  tooWige  any  justice 
of  the  peace,  being  a  member  of  the  senate  or  assembly,  or  any 
judge  of  any  •connty  court,  to  take  cognisance  of  any  action  by 
virtue  of  this  act  ;  but  that  they  shall  be  at  liberty,  at  all  tunes,  to 
act  therein  or  not,  at  their  discretion.  And  no  justice  of  tb>e 
peace,  being  an  inn  or  tavern-keeper,  or  living  in  a  house  in 
which  a  tavern  is  kept,  and  no  alderman  of  the  city  of  Albany, 
shall  try  any  cause  by  virtue  of  this  act."  s.  10. 

In  an  action  of  trespass  de  bonis  asportolis  ngtnnst  a  justice  of  the  Schtnner- 
peace,  a  constable,  and  a  plaintiff  in  a  suit  before  the  justice,  for  'j1,"™,"1^1 
taking  the  goods  of  tbe  defendaBt  in  an  execution  on  a  judgment   Tripp,  2 
rendered  by  th-e  justice,  the  defendants  all  joined  in  a  plea  of  not  103"" 
guilty.     The  evidence  a-ddtjoed  was,  that  the  justice   lived   in  a 
tavern,  where  he  officiated  as  the  tavern-keeper,  made   out  the 
bills,  and  received  payment  for  them,  but   that   the  justice    did 
his  business  in  a  small  out-room,  and  the  license  far  tt>e  'house  was 
taken  out  an  tfce  name    of  the  justices   son.     Thk,  ihowever,  it 
appeared  from   the  justice's  own   declaration,  was -done  to  avoid 
the  operation  of  the  act.     Judgment  was  given  for  the  plaintifFin 
the  court  below,  (the  common  pleas,)  and  tlie  judgment  w;ts  af- 
firmed in  the  'junreme  court,  as  the  justice  fead    no  jurisdiction  ; 
it  being  conclusively  shown  that  he  was  in  fact  a  keeper   of  a  ta- 
vern, or  lived  in  one,  and  the   constable   having  joined  with  him 
and  the  platn&kfTin  pleading  the  general  issue,  they  were .aM  equal- 
ly trespassers. 

Where  the  justice  who  tried  the  cause,  before  the  trial,  moved  tow  v.  H;CP 
int«  the  house  of  one  M.,  avho  kept  a  tavern,  and  occupied  one  LI"1"'* •iu'*1' 
end  of  the  house,  but  the  whole  communicated  -in  the  inside  by 


(n)  As  to  the  statute  of  amendments  ami  jeofails  referred  to  in  the 
act,  it  may  be  'fiifncient  to  observe  that  it  cures  all  clerical  mistakes, 
erasures,  interlineations,  addition  or  subtraction  of  letters  or  words,  £c. 
and,  in  general,  that  it  aids  all  formal  defects  in  case  a  verdict  has  been 
Riven,  or  judgment  bus  been  entered  by  confession  or  default  ;  but  it 
cioes  not  extend  to  actions  on  pemii  .statutes. 


276  JUSTICES  COURTS. 

a  passage,  and  M.  continued  keeping  tavern  at  the  time  of  the. 
trial,  the  judgment  was  reversed.  Per  curiam.  To  say  that, 
living,  as  he  did,  was  not  living  in  a  house  where  a  tavern  was 
kept,  would  be  to  repeal  the  law,  by  allowing  it  to  be  evaded  on 
the  most  flimsy  pretexts.  The  justice  moved  into  the  house  after 
the  suit  was  commenced,  and  before  the  trial.  The  plaintiff's  ap- 
pearing and  going  to  trial  will  not  give  jurisdiction  where  there 
was  none  by  law. 

By  the  ,'jyth  article  of  the  constitution  of  this  state,  no  minis- 
ter  of  the  gospel,  or   priest  of  any  denomination  whatsoever,  is 
eligible  to,  or  capable  of  holding  any  civil   or   military   office  or 
M'instrj-v.      place  within  this  state.     But  on   the   return   to  a    certiorari,  the 
e  .Tolms.         court  will  not  admit  the   objection,  that  the  justice  was  a  priest 
Hep.  135.        or  minister   of  the   gospel,  and  that  the  proceedings  were  there- 
fore  coram  non  judice,  but   will  presume  that  the  justice  acted 
under  a  regular  commission. 

XIX.  Justice's  certificate,  when  cindcnce. 

"The  official  certificate  of  a  justice  of  the  peace,  certifying 
the  proceedings  and  judgment  in  every  case  by  such  justice  ren- 
dered, with  a  certificate  thereon,  sealed  by  the  clerk  of  the 
county  where  such  justice  shall  reside,  certifying  that  he  whose 
signature  appears  on  said  exemplification  was,  at  the  date  of  said 
judgment,  a  justice  of  the  peace,  shall  be  good  and  legal  evi- 
dence in  any  court  of  justice  in  this  state,  to  prove  the  facts  con- 
tained in  such  exemplification,  and  nothing  more."  s.  21 
KelU'ggv.  In  an  action  of  dr.bt  on  a  judgment  before  a  justice,  the  plain- 

p'joC'ueii.  tiff  produced  a  certificate  under  the  hand  and  seal  of  the  justice, 
878-  before  whom  the  judgment  was  recovered,  of  the  judgment  ob- 

tained before  him.  The  defendant  made  no  objection  to  the  cer- 
tificate, and  judgment  was  given  against  him,  which  was  aflirm- 
ed.  The  certificate  of  the  former  judgment,  which  was  pro- 
duced, and  riot,  objected  to,  was  prima  facie  evidence  at  least  of 
the  existence  of  the  judgment ;  and  as  this  evidence  was  not  con- 
tradicted or  questioned  by  the  defendant  below,  ii  must  be  con- 
sidered as  sufficient  to  support  the  judgment. 

ri'Cnrty  v.  But  if  the  objection  had  been  made  at  the  trial,  it  would  have 

l'1""'*"^       been   a   cause   for   reversing  the  judgment.      So,  in  an  action  of 
4^.  debt  on  a  judgment  obtained  before  another  justice,  the  defend- 

ant pleaded  mil  tiel  record.  On  the  trial,  a  certificate  of  the 
judgment,  under  the  hand  and  seal  of  the  former  justice,  was 
produced,  but.  was  not  proved,  except  by  a  witness  who  testified 
to  the  hand-writing,  and  was  read  in  evidence,  though  objected 
to  by  the  defendant.  The  court  said,  the  objection  to  the  certi- 
ficate of  the  former  justice,  as  evidence,  was  well  founded.  It 
ought  to  have  been  proved  by  the  justice  himself  who  gave  the 
judgment,  or  a  sworn  copy  of  his  minutes  should  have  been  pro- 
duced. In  the  case  of  Kellogg  v.  Mauncy,  the  evidence  of  the  cer- 


JUSTICES  COURTS.  277 

ft  was  not  objected  to,  and  was  therefore  considered  as  ad- 
mitted.    The  judgment  below  must  be  reversed. 

If  where  tho  defendant  pleads  a  former  judgment  in  bar,  the   wa'^  v< 
justice  (being  the  same  justice  before  whom  the  former  trial  be-  s  Johns. Rep. 
t  ween  tlit1  same  parties  was  had)  give  parol  evidence  of  his  own   351' 
record,   it  is,   if  objected  to,  erroneous,  and  is  a  sufficient  ground 
for  reversing  the  judgment. 

But  it  is  otherwise  if  not  objected  to  at  the  trial  :*  for  although   Lami-nce  v. 
the  statement  of  the  justice   is   not  competent  evidence,  yet  it  .,  .?ohns.0Rcp, 
may  be  made  so  by  consent  of  the  parties  ;  and  that  consent  will   129> 
be  inferred  from  the  omission  of  the  party  to  object  to  it  when  it 
is  offered  and  given. 

In  an  action  before  a  justice,  another  justice  was  offered  as  a   possonv. 
witness,  to  prove   that  there   had  been   a    trial   before    him,  in   BrjW"- 
which  judgment    had  been    given    against    the    plaintiff.      This  Rep.  i6o*. 
evidence  was  objected  to,   but     admitted  by   the  justice.      Per 
curiam.     Though   the   proceedings   and  judgment  before   a  jus- 
tice  may   not   be  technically  a   record,  yet    the   material   parts 
are    in    writing,  and    ought    to    be   produced.     Parol    evidence 
of  such  proceedings   is  not  the  highest  or  best  evidence  in  the 
power  of  the  party,  and  ought  not,   therefore,    to   be    admitted. 
The  magistrate  should,  at  least,  produce  the  written  evidence  of 
his  proceedings,  as  far  as  the  same  is  in  his  possession  or  poivcr. 
The  statute  directing  the  manner  in  which  the  proceedings  before 
justices  of  the  peace  arc  to  be   authenticated,  seems  to   regard 
such  proceedings  as  in  the  nature  of  a  record. 

XX.  Jillachment  against  absent  and  absconding  debtors. 

"  It  shall  and  may  be  lawful  for  any  justice  of  the  peace  in  any 
county  within  this  state,  (the  city  and  county  of  New-York  ex- 
cepted,)  on  application  and  satisfactory  proof,  by  at  least  one  dis- 
interested witness,  being  offered  by  any  creditor  to  such  justice, 
that  any  person  against  whom  he  may  have  a  demand,  not  ex- 
ceeding twenty-five  dollars,  hath  departed,  or  is  about  to  depart 
from  such  county,  or  is  concealed  within  the  same,  with  intent 
fo  defraud  any  of  his  or  her  creditors,  or  to  avoid  being  personal- 
ly served  with  any  process  to  be  issued  by  virtue  of  this  act,  to 
issue  an  attachment,  directed  to  any  constable  as  aforesaid,  re- 
quiring him  to  attach  the  goods  and  chattels  of  such  person,  (ex- 
cept such  goods  and  chattels  as  are  exempt  from  exe.cution,)  and 
the  same  safely  keep,  to  satisfy  any  judgment  which  may  be  ren- 
dered by  such  justice  on  such  application,  and  to  return  the  same 
within  the  times  above  limited  for  the  return  of  a  summons  :  Pro- 
vided, however,  That  before  any  such  attachment  shall  issue,  the 
justice  shall  take  from  such  applicant  a  bond  to  the  defendant, 
with  one  sufficient  surety,  in  the  sum  of  twenty-live  dollars,  con- 
ditioned to  pay  the  defendant  all  damages  and  costs  he  may  sus» 
Jain  by  reason  thereof,  if  no  judgment  shall  be  recovered  a^' 
such  defendant."  s.  23, 


278  JUSTICES  COURTS. 

<'  It  shall  be  the  duty  of  such  constable,  on  the  receipt  of  any 
such  attachment,  to  attach,  take,  and  safely  keep  the  goods  and 
chattels  of  the  person  against  whom  the  same  may  be  issued,  to 
satisfy  such  judgment  as  m-ay  be  rendered  in  favour  of  such  appli- 
cant, i'nd  also  to  leave  a  copy  of  such  attachment  at  the  dwelling- 
house  or  other  last  place  of  abode  of  the  defendant:  Pror'uhd, 
That  such  constable  shall  not  remove  or  convey  away  any  such 
property,  if  o'n  attaching  the  same,  a  bond,  with  good  and  suffi- 
cient security,  be  given  to  the  plaintiff,  in  the  penalty  of  fifty  dol- 
lars, conditioned  that  such  goods  and  chattels  shall  be  produced 
to  satisfy  any  execution  which  may  be  issued  on  any  judgment  to 
be  recovered  on  such  application  ;  and  such  constable  shall,  on  the 
rrttirn  dny  of  such  attachment,  return  the  same  to  the  justice 
•who  issued  the  same,  and  the  manner  of  executing  the  same,  to- 
gether with  such  bond,  whenever  he  may  have  taken  one.-''  s.  24. 
"On  the  return  of  said  attachment,  the  said  justice  shall  pro- 
ceed to  hear,  try  and  determine  the  cause  between  the  said  par- 
ties, in  the  same  manner  as  on  summons  returned  personally 
served  on  the  defendant  as  herein  before  directed:  Provided, 
That  no  judgment  to  be  rendered  therein,  in  the  event  of  the 
non-appearance  of  the  defendant,  or  his  not  having  been  person- 
ally served  with  a  copy  of  the  attachment,  shall  work  a  wrong  or 
injury  to  any  claim  or  demand  he  may  have  against  such  plaintiff, 
bat  he  may  sue  for  and  recover  the  same  as  if  no  such  trial  or 
judgment  IKH!  been  rendered  against  him."  s.  25. 

IM^I'r  M'Vickar  sued   out  an  attachment  before  the  justice   against 

•9  Johns. Rep.  Field,  of  Cocksackie,  in  the  county  of  Green,  as  a  debtor  con- 
.  eealed  withm  the  county,  with  intent  to  defraud  his  creditors,  and 
avoid  process,  &c.  The  attachment  was  regularly  issued.  On 
its  return,  both  parties  appeared,  and  Field  pleaded  in  abatement, 
that  before  and  at  the  time  of  issuing  the  attachment,  he  resided 
in  Cocksackie,  and  had  not  departed,  nor  was  he  about  to  depart, 
from  the  county,  nor  did  he  conceal  himself  within  the  same,  with 
intent  to  defraud  his  creditors,  &c.  or  to  avoid  process,  &.c.  The 
plaintiff  demurred  to  the  plea,  which  was  overruled  by  the.  jus- 
tice, and  Field  then  left  the  court,  without  making  any  furth-er 
defence.  The  plaintiff  having  proved  his  demand,  the  justice  gave 
judgment  for  him.  It  was  now  objected  that  the  pleas  in  abate- 
ment were  sufficient,  but  the  court  held  that  the  objection  could 
not  prevail.  If  the  proceedings  on  the  attachment  were  regular, 
which  is  not  questioned  in  this  case, '"the  justice  had  no  power  to 
supercede  the  attachment,  but  must,  on  the  return  thereof,  pro- 
ceed to  hear  the  cause,  as  on  any  other  process. 

vjnioan  v.         In  an  action  of  trover  in  the  supreme  court  against  the  defendant, 

TOJohnt.         wu°  "a(l  purchased  the  property  in  question,  on  several  execu- 

.Rep.  129.        tions,  issued  from  a  justice's  court  against  one  Eaton,  one  of  which 

was  issued  on  a  judgment  on  an  attachment,  it  appeared  that  on 

the  8th  October,  1811,  a  judgment  was  entered  up  by  confession, 

and  docketed  against  Eaton,  on  which  an  execution  was  issued 


JUSTICES  COURTS.  279 

aod  delivered  to  the  plaintiff,  as  sheriff  of  the  county  of  Green,  on 
the  1 1th  October.  The  plaintiff,  on  the  day  he  received  the  ex- 
ecution, went  to  the  house  of  Eaton,  and  found  the  property  in 
question  lucked  up  in  a  room,  the  key  of  which  was  in  possession 
of  a  constable  who  had  attached  the  goods  of  Eaton,  prior  to  the 
delivery  of  the  execution  to  the  plaintiff,  by  virtue  of  an  attach- 
ment issued  by  a  justice,  and  that  judgment  was  entered  upon  the 
attachment  the  (>th  October ;  and  the  property  was  sold  by  the 
constable,  on  execution,  subsequent  to  the  delivery  of  the  fieri 
facias  to  the  sheriff,  who  forbade  the  sale  by  the  constable,  and 
claimed  the  property  under  the  execution  held  by  him.  Per 
curiam.  The  service  of  the  attachment  seems  to  place  the  goods 
in  the  custody  of  the  law,  or  at  least  to  create  a  valid  lien,  which 
the  subsequent  execution  in  another  suit  cannot  remove.  If  the 
attachment  has  not  this  effect,  what  is  to  become  of  the  security 
which  the  constable  is  to  take  ?  and  shall  the  bond  be  deemed 
forfeited,  when  the  law  permits  an  execution  in  another  case,  and 
without  any  pretension  to  priority,  to  seize  and  appropriate  the 
goods  ?  If  the  service  of  the  attachment  be  not  a  lien,  the  pro- 
ceeding is  useless,  for  it  may  at  any  time  be  defeated  by  the 
debtor,  by  confession  of  judgment  to  another  creditor ;  and  it 
would  be  the  greatest  injustice  to  enforce  the  forfeiture  of  the 
bond,  when  the  laAV  permits  the  property  to  be  seized  in  the 
hands  of  the  security.  The  test  of  the  execution,  though  prior 
to  the  attachment,  cannot  make  the  process  overreach  and  defeat 
the  attachment  by  relation,  for  a  fiction  cannot  take  away  a  vest- 
ed right.  Nor  can  the  public  suffer  any  inconvenience  from  the 
binding  effect  of  the  attachment;  for  the  attachment  is  to  be  re- 
turned to  the  justice  as  speedily  as  a  summons,  and  the  justice  is 
then  to  proceed  immediately  in  the  cause,  in  like  manner  as  if  a 
summons  had  been  personally  served  on  the  defendant.  It  ac- 
cordingly appears  to  us  to  be  the  true  construction  of  the  act,  that 
the  attachment,  if  issued  at  the  instance  of  a  bona  fide  creditor, 
and  in  a  case  warranted  by  law,  creates  a  lien  upon  the  goods, 
not  only  against  the  acts  of  the  debtor  himself,  but  against  the 
subsequent  attachment,  or  the  subsequent  execution  of  any  other 
creditor.  This  lieu  is  no  doubt  temporary,  and  will  expire  if  the 
creditor  does  not  prosecute  his  suit  to  judgment  and  execution 
with  all  due  diligence. 

XXI.  Costs. 

"  No  greater  or  other  costs  shall  be  allowed  or  taken  in  actions 
brought  by  virtue  of  tbis  act,  than  the  following: — Justice's  fees  ; 
a  summons,  nine  cents;  a  warrant,  twelve  and  an  half  cents;  at- 
tachment, nineteen  cents ;  judgment,  twelve  and  an  half  cents ; 
administering  every  oath,  six  cents  j  subpoena  for  each  witness, 
six  cents  ;  an  adjournment,  nine  cents  ;  issuing  the  venire  facias  ta 
summon  a  jury,  n'raeteen  cents  ;  swearing  the  jury,  twelve  aod  an 


JUSTICES  COURTS. 

hall"  cents;  every  execution,  nineteen  cents :  evrry  foreign  witness 
attending  and  sworn.  tw.  :;iy,  and  every 

witness  attending  and  sworn,  t\vrlve  and  an  hall"  cents;  constable 
or  other  proper  officer,  for  serving  a  warrant  or  summons,  i, 
ing  the  plaintiff,  or  serving  an  attachment  or  execution,  mileage 
for  one  mile  or  under,  twelve  and  an  half  cents  ;  for  every  mile 
more,  six  cents;  copy  of  summons,  nine  cents  ;  Provided,  Tliat  on 
all  precepts  to  be  issued  by  virtue  of  this  act,  the  fre»  for  M 
be  computed  only  from  the  place  of  abode  of  the  defendant,  or 
•where  he  shall  be  found,  to  the  place  where  the  precept  is  return- 
able ;  serving  every  execution,  for  every  dollar,  five  cents ;  sum- 
moning every  jury,  thirty-seven  and  an  half  cents.  Juror's  ftts  : 
for  all  causes  tried,  twelve  and  an  half  cents  each  :  when  sum- 
moned and  attending,  and  not  trying  the  cause,  six  cents  each  :  to 
the  constable  or  other  person  serving  subpcena,  twelve  and  an  half 
cents  for  each  witness  :  Provided.  That  no  party  shall  be  entitled 
to  fees  for  serving  any  subpoenas  upon  a  greater  number  of  wit- 
nesses than  four  in  any  one  cause.  And  providtd  also,  That  the 
•whole  costs  to  be  recovered  or  allowed  in  any  action,  shall  not 
exceed  the  sum  of  five  dollars,  except  in  the  case  of  the  attend- 
ance of  a  witness  from  a  foreign  county,  or  in  the  proceeding  by 
attachment,  in  which  cases  the  addition  of  such  witnesses'  fees, 
and  fifty  cents  for  serving  the  attachment,  may  be  allowed,  and 
twelve  and  an  half  cents  to  the  justice  for  taking  a  recognisance 
incase  of  attachment."  s.  20. 
.  In  all  suits  under  the  ten  pound  act,  costs  are  given,  of  course, 

>CilUp«ueh, 

iJohui.Rep.  when  a  debt  or  damages  are  recovered. 

!^*jd  T  If  costs  be  allowed  for  subpeer.aing  more  than  four  witnesses,  it 

M'Vick»r        is  a  fatal  error,  for  which  judgment  will  be  reversed. 

130-    *"    ep'        A  justice  is  not  liable  to  be  sued  by  witnesses  for  their 

Andrews  T.     jjjgy  must  look  to  the  party  by  whom  they  are  subpoenaed. 

5Johr.f.Rep. 

ssl'  XXII.  Subpoenaing  triinesses  before  arbitrators. 

(i  It  shall  be  lawful  for  the  justices  of  the  peace  in  this  state  to 
issue  subpoenas  to  compel  witnesses  to  attend  and  give  evidence 
before  arbitrators :  Provided,  The  party  or  parties  shall  prove  to 
the  satisfaction  of  such  justice  that  a  submission  to  arbitration  has 
been  made:  and  on  default  of  attendance,  such  witness  shall  suffer 
the  same  penalties  as  are  inflicted  by  this  act,  for  default  in  at- 
tending a  justice's  court  when  subpoenaed,  to  be  levied  and  col- 
lected in  the  same  marner  and  for  the  same  purpose,  on  com- 
plaint of  any  person  aggrieved  by  such  default."  s,  , 


LARCENY  AND  ROBBERY.  281 


KIDNAPPING. 

•'  If  any  person  shall,  without  due  process  of  law,  seize  and  for- 
cibly confine  or  inveigle,  or  kidnap  any  negro,  mulatto,  mustee, 
or  other  person  of  colour,  not  being  a  slave,  with  intent  to  send 
him  out  of  this  state,  against  his  will,  or  shall  conspire  with  any 
other  person  or  persons,  or  aid,  abet,  assist,  hire,  command  or 
procure  any  other  person  to  commit  the  said  offence,  and  shall 
be  duly  convicted  of  any  of  the  said  offences,  before  any  court 
of  oyer  and  terminer,  or  general  sessions  of  the  peace  of  any 
county  in  or  through  which  such  negro,  mulatto,  or  mustee  sh.tll 
have  been  brought,  taken,  kidnapped,  confined,  seized,  or  in- 
veigled as  aforesaid,  shall  be  fined  or  imprisoned,  or  both,  in  the 
discretion  of  the  court  before  which  such  conviction  shall  be  had, 
such  fine  not  to  exceed  one  thousand  dollars,  and  such  imprison- 
ment not  to  exceed  fourteen  years,  at  hard  labour,  in  the  state 
prison ;  and  it  shall  be  lawful  for  the  said  court  to  imprison  such 
offender  in  the  county  gaol,  provided  the  term  of  imprisonment 
imposed  shall  not  require  the  offender  to  be  sent  to  the  state 
prison."  Se«s.  36'.  c.  15.  s.  I.  2  R.  L.  209. 

On  a  second  conviction  for  any  of  the  offences  before  speci- 
fied, the  offender  shall  be  adjudged  to  imprisonment  for  life.  s.  2. 

And  in  general,  the  kidnapping,  or  forcible  abduction  or  steal-   *Black.c8»p» 
ing  away   of  a  man,   woman,  or  child,  from  their  own  country.   rh9':and  & 
for  the   purpose   of  sending  them  into  another,  is  a  misdemean-  (•»; 
our  at  common   law,  and    punishable    with    fine,  imprisonment, 
and  pillory.     When   a   child  is  stolen  for  the  sake  of  its  clothes, 
it   is  the  same  species    of  felony  as  if  the   clothes  were  stolen 
without  tlie  child  ;  but  it  cannot  be  considered  a  felony,  where 
a  child  is  stolen  and  not  deprived  of  its  clothes. 


LARCENY  AND  ROBBERY, 

I.  Simple  larceny. 
IT.  Mixed  larceny. 

III.  Robbery. 

IV.  Punishment  of  larceny  and  robbery. 

V.  Receivers  of  stolen  goods. 
VI.  Restitution  of  stolen  goods. 

I.  Simple  larceny. 

Simple  larceny  is  defined  by  Mr.  East  to  be,  the  wrongful  or  2  B 
fraudulent  taking  and  carrying  away  by  any  person,    of  the   mere 
personal  goods  of  ituj'hw,  from  any  place,  it  ilk  a  felonious  i.-:imt 
to  convert  them  to  his  (the  taker's)  own  use,  and  make  +htK> 

[  36  ] 


LARCENY  AND  ROBBERY. 


S  East.  P.  C. 

554. 

J  Hawk.  c. 

31?.  v  . 

S  EaM.  P.C. 

f63,  66  ». 

1  Hale.  P.  C. 

406,  407. 


f  Hawk,  c. 
S3.  s.  3. 


i  East.  P.  C. 
fif  5— •  93. 

1  l.-ach.  CSS. 
•if  . 

2  I,tach.  470. 
3  Bac.  Ahr. 
132. 


*  T'.ait.  P.C. 

6(i9— • 

2  Leacb,  693. 


property,  without  the  consent  of  the  owner.     The  object  of  thi 
sent  section  will  be  to  illustrate  the  several  parts  of  this  definition. 

I.    What  is  a  taking. 

As  to  the  taking  which  is  necessary  to  constitute  this  of- 
fence, there  must  he  an  actual  taking  or  severance  of  the  thing 
from  the  possession  of  the  owner  ;  for  as  every  larceny  includes 
a  tresp-iss,  if  the  party  be  not  guilty  of  a  trespass  in  taking  the 
goods,  he  cannot  be  guilty  of  felony  in  carrying  them  rr. 
Therefore,  one  who  finds  goods  which  I  have  lost,  and  con- 
verts them  to  his  own  u?e,  animofurandi,  is  no  felon.  How* 
this  must  he  where  the  finder  really  believes  the  goods  to  have 
been  lost  by  the  owner,  and  does  not  colour  a  felonious  taking 
under  such  a  pretence.  Therefore,  where  a  man's  goods  are  in 
such  a  place  where  ordinarily  they  are,  or  may  be  placed,  and  a 
person  takes  them  away  with  a  view  to  convert  them  to  his  own 
use,  the  pretence  of  finding  is  no  excuse.  Thus  the  taking  of 
another  man's  horse  from  his  own  or  his  neighbour's  ground  or 
common,  with  intent  to  steal  it,  is  felony. 

One  who  has  the  actual  possession  of  my  goods  by  my  deli- 
very. for  a  special  purpose,  as  a  carrier  who  receives  them  in 
order  to  carry  them  to  a  certain  place  ;  or  a  tailor  who  has  them 
in  order  to  make  me  a  suit  of  clothes;  or  a  fViend  who  is  en- 
trusted with  them  to  keep  for  my  use,  cannot  be  said  to  steal 
them,  by  embezzling  them  afterwards. 

But  if  a  person  obtain  the  delivery  of  a  thing  by  fraud  or  false- 
hood, and  with  an  intent  to  steal,  though  under  pretence,  of  a 
hiring  or  even  a  purchase  ;  if.  in  the  latter  case,  no  credit  were 
intended  to  be,  given,  the.  delivery  in  fact  by  the  owner  will  not 
pass  the  legal  possession  so  as  to  save  the  party  from  the  guilt  of 
felony.  Thus,  where  A.  intending  to  go  a  distant  journey,  hires 
a  horse,  fairly  and  bonajide  for  that  purpose,  and  evidences  the 
truth  of  such  intention  by  actually  proceeding  on  his  way,  and 
afterwards  rides  off  with  the  horse,  it  is  no  theft;  because  the 
felonious  design  was  hatched  subsequent  to  the  delivery,  and 
the  delivery  being;  obtained  without  fraud  or  design,  the  owner 
parted  with  his  possession  as  well  as  his  property,  and  thereby 
^ave  to  A.  dominion  over  the  horse,  upon  trust  that  he  would  re- 
turn him  when  the  journey  was  performed.  But  had  A.  obtained 
possession  of  the  horse  solely  with  t;is  view  of  appropriating  him 
to  his  own  use,  although  the  owner  in  this  ca?e  p.Tts  with  the 
thing  itself,  he  still  retains,  in  law,  the  constructive  possessioa 
of  it.  And  where  the  delivery  of  property  is  made  for  a  certain, 
special,  and  particular  purpose,  the  possession,  except  for  such 
purpose,  is  still  supposed  to  reside  imparted  with  in  the  first 
proprietor.  Whether  the  intent  of  the  prisoner  was,  at  the  time 
of  the  delivery,  felonious,  is  a  question  proper  for  the  jury. 

Where,  however,  a  person  fraudulently  obtains  the  property  of 


v 

I 


LARCENY  AND  ROBBERY.  283 

tv  thing,  by  a  delivery  from  the  true  owner,  the  fraudulent  intent 
will  not  aggravate  the  ofiVnce  to  felony  ;  for  there  is  no  trespass 
in  th<>.  original  taking,  and  the  property  being  once  vested  in  the 
other  party,  it  can  be  divested  by  no  act  of  his,  so  as  to  render 
him  a  trespasser:  the  offender  in  such  case,  when  punishable  at 
all,  can  only  be  proceeded  against  as  a  cheat.  So,  where  the  R.v.Harrey. 
prisoner  met  the  prosecutor  at  a  fair  with  a  horse,  which  he  had  ***•*!  &*• 
brought  there  for  the  purpose  of  selling,  and  being  known  to  him, 
proposed  to  him  to  become  the  purchaser.  They  walked  together 
in  the  fair;  and,  upon  a  view  of  the  horse,  the  prosecutor  told 
the  prisoner  he  should  have  it  for  eight  pounds  ;  and  calling  his 
servant,  ordered  him  to  deliver  it  to  the  prisoner,  who  immedi- 
ately mounted  the  horse,  telling  the  prosecutor  that  he  would  re- 
turn immediately  and  pay  him  :  the  prosecutor  replied  very  well, 
and  the  prisoner  rode  away  with  the  horse,  and  never  returnud. 
GOULD,  J.  ordered  an  acquittal ;  for  here  was  a  complete  con- 
tract of  sale  and  delivery  ;  the  property,  as  well  as  the  posses- 
sion, was  entirely  parted. 

So,  although  the  credit  was  obtained  by  using  the   name  of  zEast,P.  C*. 
another    person ;  as    where   a   prisoner   went   to   a   tradesman's    c0leman'» 
house,  and  said  she  came  from  a  neighbour  who  would  be  much   ^'°'1  Leach, 
obliged  if  he  would  let  her  have  half  a  guinea's  worth  of  silver, 
and  that  she  would  send  the  half  guinea  presently.    The  prisoner          , 
obtained  the  silver,  and  never  returned ;  and  this  was   h  olden    no 
felony.     So  too,  where  the  prisoner  wrote  a  letter  in  the  name   Atkinson's 
of  a  third  person,  to  A.,  sending  it  by  B.,  soliciting  a  loan  of  some   ^;'2Easf> 
money,  and  desiring  it  to  be  sent  to  him  immediately  ;  A.  deli- 
vered the  money  to  B.,  who  gave  it  to  the  prisoner ;  this  was  held 
not  to  be  felony. 

In  all  such  cases,  the  delivery  must  be  complete;  there  must  2  East,  P. c. 
be  an  entire  transfer  of  the  legal  property  ef  the  goods  ;  other-    ioe 
wise,  if  the  party  take  the   goods,  the  sale,  for  instance,  not  be- 
ing complete,  it  will  be  larceny.      So,  where  a  person  fraudulent-    2  Fast  p.  c. 
ly  procures  goods  or  money  to  be  delivered  to  him  as  a  pledge,   L«i7h.  354/2 
which  he  converts  to  his  own  use,  it  will  be  larceny,  for  the  pro-    **»d»)  73°- 
perty  still  remaining  in  the  pawnor,  the  pawnee  is  precluded 
Vom  excusing  himself  on  the  ground  of  the  legal  ownership  being 
ested  in   him  ;  and  as  the  possession  was  fraudulently  obtained 
by  the  pawnee,  and  for  a  special  purpose,   he    becomes    a  tres- 
passer on  the  constructive  possession  still  remaining  in  the  pawnor. 

Besides  the  case  in  which  the  possession  was  obtained  with  a 
felonious  intent,  there  are  other  exceptions  to  the  general  rule, 
that  a  bailment  shall  protect  the  party  from  answering  criminali- 
ter ;  these  are  either  where  the  privity  of  contract  is  determined 
by  the  completion  of  the  purpose  for  which  the  bailment  was 
made,  or  where  there  is  a  tortious  conversion  of  the  goods  pend- 
ing the  contrac  .  Amounting  in  law  to  a  new  taking. 

As,  if  a  man     he  a  horse  fora  certain  time,  or  to  go  to  a  parti-   2  East,  p.  f 
eular  place,  a  ;u  after  the  time  be  expired,  or  the  party  arrived  at       '    ^ 


284  LARCENY  AN7D  KOBBERY. 

the  proper  place  of  re-delivery,  he  ride  away  with  the  hone,  and 

convert  it  to  his  own  use,  it  will  then  be  felony.  For  the  end 
and  purpose  of  the  hiring,  for  which  the  delivery  was  made, 
would  be  then  over,  and  the  legal  possession  following  the  right 
of  property,  as  soon  as  the  special  property  of  the  holder  is  de- 
termined, the  legal  possession  reverts  to  the  original  owner,  in  the 
same  manner  as  if  there  never  had  been  any  precedent  delivery; 
after  which,  any  new  taking  by  the  party  for  his  own  use  will,  in 
point  of  law,  be  a  trespass  ;  and  if  it  be  done  with  a  felonious  in- 
tent to  steal,  of  which  the  jury  are  to  judge,  will  amount  to  felony. 
2Ka?t,  P.  e.  If  a  man  deliver  goods  to  a  carrier,  to  carry  to  a  certain  place, 
i  Hair,  504.  a"d  lie  carry  them  away,  it  is  no  felony  ;  otherwise,  if  he  have  u 

1  Hawk.  c.      na]f>  or  trunk  with  goods  delivered  to  him,  and  he  break  the  bale 
4  Black.         or   trunk,  and  take  and  carry  away  the  goods  with  intent  to  steal 
Com.  23o.        them  ;  so  if  he  carry  the  whole  pack  to  the  place  appointed,  and 

then  carry  it  away  with  intent  to  steal  it,  this  is  a  felonious  tak- 
ing; for  the  delivery  had  taken  effect,  and  tUe  privity  of  the 
bailment  was  determined.  But  that  must  be  intended,  says  Lord 
Hale,  when  he  carries  them  to  the  place,  and  delivers  or  lays 
them  down  ;  for  ihere  his  possession  by  the  first  delivery  is  deter- 
mined, and  the  taking  afterwards  is  a  new  taking. 

aHnuk.  c.  So  where  a  weaver  who  has  received  silk  to  work,  or  a  miller 

33.  s.  s.          who  has  corn  to  jrrind,  take  out  part  with  an  intent  to  steal   it,  it 
will  be  felony  ;  for  here,  by  the  severance,  he  wrongfully  obtains 
a  distinct  possession  of  a  part  not  delivered  to  him  by  the  owner. 
Cnrtwrigiit  So   where   a  bureau  is  delivered  to  a  carpenter  to  repair,  and 

sVGrejn>40s    ^e  discovers  in  a  secret  drawer  money,   which  he  takes  out  and 
converts  to  his  own  use,  it  is  felony. 

2  East,  P.  c.          When   one   has  only  the  bare  charge  or  custody  of  the  goods 
564  i  Hale,     of  another,  the  legal  possession  remains  in   the  owner,  and  the 
lHawk.e.       party  may  be  guilty  of  trespass  and  larceny  in  fraudulently  con- 
verting the  same  to  his  own   use.     Thus,  a   butler   may  commit 
larceny  of  plate  in   his   custody,  or  a   shepherd   of  sheep,  or  a 
guest  in  an  inn.     The  same  of  a  servant  entrusted   to  sell  goods 
in  a  shop.     This  rule  appears  to  hold  universally  in  the   case  of 
servants,  whose  possession  of  their  master's  goods,  by  their  deli- 
very or  permission,  is  the  possession  of  the  master  himself. 

2F,mt,  T.C.  Although  there  must  be  a  taking  in  fact  from  the  actual  or 
HjfwiTc'si  constructive  possession  of  the  owner,  yet  it  need  not  be  by  the 
s.  8.  i  Kale,  very  hand  of  the  party  accused.  For  if  he  fraudulently  procure 
jo«!  another,  who  is  himself  innocent  of  any  felonious  intent,  to  take 

the  goods  for  him,  it  will  be  the  same  as  if  he  had  taken  them 
himself,  and  the.  taking  must  be  charged  to  be  by  him  ;  as,  if 
one  procure  an  infant  within  the  age  of  discretion  to  steal  goods 
for  him.  So,  if  A.  having  a  design  to  steal  B.'s  horse,  which  was 
impounded  on  a  distress,  enters  a  plaint  in  replevin  for  the  horse, 
and  thereby  getting  it  delivered  to  him,  runs  away  with  it ;  or  in- 
tending to  steal  the.  goods  of  B.  in  his  house,  he  delivers  an  < 
ment  fraudulently,  and  having  obtained  judgment  against  the  ca- 


LARCENY  AND  ROBBERY.  285 

sual  ejector,  he  gets  possession,  and  goes  oil"  with  the  goods,  it  is 
felony  in  either  case. 

2.   Carrying  away. 

There  must,  not  only  be  a  taking,  but  a  carrying  away.     A  bare   *  Black. 
removal    from   the    place    in    which  the  thief  found   tlx   pn;i;.-.,   Co'"' 
though  he  does  not  quite  make  off  with  them,  is  a  sufficient  aspor- 
tation  or  carrying  away. 

Upon   this  ground,   the  guest  who,  having  taken  off  the  sheets   2  Ka<t  r.  c. 
from  his  bed,  with  an  intent  to  steal  them,  carried  them  it, to  t!1      rim:  »•». 
hall, and  was  apprehended  before  he  could  get  out  of  the  house,  w,t?    isH">K8  % 
adjudged  guilty  of  larceny.    So  also  was  ho,  who  hayiug  takeaa    Hak,  io«. 
horse  in  a  close  with  intent  to  steal  it,  was  apprehended  b(  fort-  he 
could  get  it  out  of  the  close.     And  such  was  the  case  of 'aim  \VMO, 
intending  to  steal  plate,  took  it  out  of  the  trunk  M-II.T-  in  ,i  \\-is, 
and  laid  it  on  the  floor,  but  was  surprised  before  ii     v:ould  remove 
it  any  further. 

A  man  was  detected  in  taking  a  bale  of  goods  in  a  waggon.     It    \^™'"  p  C- 
appeared  that  the  bale  lay  horizontally,  and  tliat  he  had  set  it  <       L.  .<•• 
its  end.     As  it  had  not  been  removed  from  the  spot,  it  was  liol  )<•:. 
that  it  was  not  a  sufficient  carrying  away.     But   where  a  n:      . 
with  a  felonious  intention,  had  removed  goods  from  tli :•  head  to 
the  tail  of  a  waggon,  it  was  adjudged  to  be  a  suificit;i.    n,,;joval  to 
constitute  a  carrying  away. 

If  the  thief  once  take   possession  of  the  thing,  the   offence   is   2  East  p.  c. 
complete,  though  he  afterwards  n:iurn  it.      As  if  a  robber,  find-    iHaie>=33. 
ing  little  in  a  purse  which  he  had   taken   from  the  owner,  restore 
it  to  him  again,  or  let  it  fall  in  struggling,  and   never  take  it  up 
again,  having  once  had  possession  of  it. 

3.   Who  may  be  guilty  of  larceny. 

Joint  tenants,  or  tenants  in   common   of  a  chattel,  cannot  be   2 East,  p  c. 
guilty  of  stealing  the  same  from  each  other,  because  the,  proper-    j5;^.  ^3- 
ty  and  possession  is  in  both.      But  under  some  circumstances  a    *  H"»j-c- 
man   may  be    guilty  of  larceny  in  stealing  his  own  goods,  or  of 
robbery  in  taking   his  own  property  from  the  person  of  another. 
As   where   A.   delivers  Roods  to   B.   to   keep   for  him,  and  then 
steals  them,  uith  intent  to  charge  B.  with  the  value  of  them  :  this  is 
felony  in  A. 

A  feme  covert  cannot  commit  larceny  of  her  husband's  goods,   2  East, p.  c. 
from  his  own  possession,  because  in  law  they  are  considered  but    iHaie.au. 
as  one  person,  and  she   has  a  kind   of  interest  in   his  goods,  on 
which  account   not  even  a  stranger  can  commit  larceny  of  such, 
by  the  delivery  of  the  wife,  although  he  knew  they  were  the  hus- 
band's goods;  but,  notwithstanding,  trespass  will  lie  against  the 
stranger. 

A  wife  cannot  commit  larceny  in  the  company  of  her  bus-  a  East, P.  c. 


286  LARCENY  AND  ROBBERY. 

hand;  for  it  is  deemed  his  coercion,  and  not  her  own  voluntary 
act.  Yet,  if  she  do  it  in  his  absence,  and  by  his  mere  command,, 
she  is  then  punishable  as  if  she  were  sole. 

A  servant,  as  has  been  before  mentioned,  may  be  guilty  of  lar- 
ceny, in  taking  away  the  goods  of  his  master,  delivered  to  his 
keeping,  by  the  common  law :  and  the  provision  of  the  common 
law  is  declared  and  enforced  by  the  following  statute: 

"  If  any  servant  to  whom  any  money,  goods,  chattels,  or  bills 
of  exchange,  bonds,  orders,  warrants,  bills,  or  promissory  notes 
for  payment  of  money,  or  any  public  security  issued  or  to  be  is- 
sued by  authority  of  the  United  States,  or  of  this  state,  for  pay- 
ment of  money,  heretofore  have  been,  or  hereafter  shall  be,  by 
his  or  her  master  or  mistress,  delivered  to  be  safely  kept,  hath 
withdrawn  himself  or  herself  from  his  or  her  said  master  or  mis- 
tress, and  gone  away,  or  hereafter  shall  withdraw  himself  or  her- 
self from  his  or  her  said  master  or  mistress,  and  go  away  with  the 
said  money,  goods,  chattels,  or  bills  of  exchange,  bonds,  orders, 
warrants,  bills,  or  promissory  notes  for  payment  of  money,  or  any 
public  securities  issued,  or  to  be  issued,  by  authority  of  the  United 
States,  or  of  this  state,  for  payment  of  money,  or  any  part  there- 
of, to  the  intent  to  steal  the  same,  and  defraud  his  or  her  said 
master  or  mistress  thereof,  contrary  to  the  trust  and  confidence 
in  him  or  her  reposed,  by  his  or  her  said  master  or  mistress,  or 
being  in  the  service  of  his  or  her  said  master  or  mistress,  with- 
out assent  or  commandment  of  his  or  her  said  master  or  mistress, 
hath  embezzled,  or  shall  embezzle,  the  same  money,  goods,  chat- 
tels, or  bills  of  exchange,  bonds,  orders,  warrants,  bills,  or  pro- 
missory notes  for  payment  of  money,  or  any  public  securities  is- 
sued or  to  be  issued  by  authority  of  the  United  States  or  of  this 
state,  for  payment  of  money,  or  any  part  thereof,  or  otherwise 
hath  converted  or  shall  convert  the  same  to  his  or  her  own  use, 
with  like  purpose  to  steal  the  same,  then,  and  in  every  such  case, 
if  the  said  money,'goods,  chattels,  bills,  or  promissory  notes  for 
payment  of  money,  or  any  public  securities  issued  or  to  be  issued 
by  authority  of  the  United  States,  or  of  this  state,  for  payment  of 
money,  that  such  servant  hath  gone  away  with,  or  shall  go  away 
with,  or  which  said  servant  hath  embezzled  or  shall  embezzle, 
with  purpose  to  steal  the  same,  as  aforesaid,  be  of  the  value  of 
two  dollars  and  fifty  cents,  or  above,  the  same  false,  fraudulent, 
and  untrue  act  or  demeanour,  shall  be  adjudged  felony.  But  this 
act  shall  not  extend  to  any  apprentice,  nor  to  any  person  within 
tluj  age  of  eighteen  years,  going  away  with  the  monies,  goods, 
chattels,  or  bills  of  exchange,  bonds,  orders,  warrants,  bills,  or  pro- 
missory notes  for  payment  of  money,  or  any  public  securities  is- 
sued or  to  be  issued  by  authority  of  the  United  States,  or  of  this 
state,  for  payment  of  money,  of  his  or  her  master  or  mistress,  or 
otherwise  converting  the  same  to  his  or  her  own  use,  during  the 
time  of  his  or  her  apprenticeship,  or  being  within  the  age  of 
n  years  ;  and  every  apprentice,  and  every  other  person  un-- 


LARCENY  AND  ROBBERY.  287 

der  the  age  of  eighteen  years,  doing  or  offending  contrary  to  this 
act,  shall  stand  and  be  in  like  case  as  if  this  act  had  not  been 
made."  Sess.  36.  c.  20.  1  R.  L.  412. 

But,  in  order  to  constitute  larceny  in  the  servant,  it  is  necessary  2E»it,p.  r. 
that  the  goods  purloined  have  been  in  the  master's  possession  be-  "' 
fore  the  actual  taking  by  the  servant;  for  if  the  master  had  no 
otherwise  the  possession  of  them  than  by  the  bare  receipt  of  his 
servant,  upon  the  delivery  of  another  for  the  master's  use,  and 
the  servant  have  done  no  act  to  determine  his  original,  lawful  and 
exclusive  possession,  as  by  depositing  the  goods  in  his  master's 
house,  or  the  like  :  because  there  was  no  tortious  taking  in  the 
first  instance,  and  consequently  no  trespass,  as  there  is  when  a 
servant  converts  to  his  own  use  property  in  the  virtual  possession 
of  his  master,  whereof  he  has  but  the  bare  charge,  for  special  pur- 
poses, committed  to  him  by  such  master. 

Thus,  in  Bazdy's  case,  who  was  indicted  for  stealing  a  bank  2East,p.c. 
note,  the  property  of  certain  bankers,  it  appeared  that  A.  who  gYcacb  9tv 
kept  cash  with  the  bankers,  sent  by  his  servant  £122  in  bank 
notes,  and  £  15  in  money,  and  amongst  the  bank  notes  was  the 
note  in  question.  That  the  servant  delivered  the  whole  into  thr 
hands  of  the  prisoner,  who  was  a  clerk  to  the  bankers,  and  as  suck 
authorized  to  receive  and  give  a  discharge  for  the  same  ;  and  that: 
it  was  his  duty  to  put  the  money  receiv  ed  into  a  till,  and  to  place 
in  another  drawer  the  several  bank  notes  which  he  might  receive; 
during  the  day.  The  prisoner  gave  an  acknowledgment  to  the. 
servant  of  having  received  the  full  sum  of  £137,  and  put  the 
money  into  the  till ;  but  instead  of  placing  the  remaining  sum  of 
£  1 22,  which  he  received  in  bank  notes,  into  the  drawer,  according 
to  his  duty,  he  kept  back  the  one  of  £  100,  for  which  he  was  in- 
dicted;  and  only  delivered  over  those  to  the  amount  of  £<2'2. 
The  jury  found  the  prisoner  guilty,  subject  to  the  opinion  of  the 
.judges,  whether  such  taking  were  to  be  considered  as  felonious,  or 
only  a  breach  of  trust?  The  judges  of  England  agreed  that  it 
was  not  felony,  in  as  much  as  the  note  was  never  in  the  possession 
of  the  bankers,  distinct  from  the  possession  of  the  defendant; 
though  it  would  have  been  otherwise  if  the  prisoner  had  de- 
posited it  in  the  drawer,  and  had  afterwards  taken  it. 

4.   Of  what  things  larceny  may  be  committed. 

It  must  be  of  goods  personal,  and  not  of  chattels  real,  or  such  2  East,  p.  c. 
as  are  annexed  to  the  freehold.     For  at  common  law  it  is  surely  a  4Biaek.Com. 
trespass,  and  not  a  felony,  to  take  such  things  :  the   reason   of  "^wk.  c> 
which  seems  to  be,  that  things  annexed  to  the  freehold,  being  33.5.21. 
usually  more  difficult  to  remove,  are  k'S3  liable  to  be  stolen,  and  5ip'.aU'>< "'' 
therefore  need  not  be  secured  by  such  severe  laws  as  mere  per- 
sonal goods  require.     Wherefore  no  larceny  can  be  committed  of 
trees,  grass,  hedges,  stones,  or  lead  of  a  house,  or  the  like.     But, 
when  once  they  are  severed  from  the  freehold,  either  by  the 


283  LARCENY  AND  ROIJBERY. 

owner,  or  even  by  the  thief  himself,  if  there  bo  an  interval  be- 
tween his  severing  and  taking  them  away,  so  that  it  cannot  )«.• 
consider  :d  as  one  continued  -ict,  it  would  then  be  felony  to  take 
them  H-.v.iy.  Thus,  of  wood  cut,  grass  in  cocks,  stones  dug  out 
oi'  t  <]ti  ,  y,  larceny  may  be  committed. 

|  Kl.sf',|>-  Cl         A  ;  i  iiv.eny  cannot  he  committed  of  things  real  at  common  law, 
••"".      neither  can  it  be  committed  of  charters  or  other  written  assu- 
rances concerning  the  realty,  because  they  savour  of  the   same 

iHaie,5io.  natnr:.1  ;  or  as  some  writers  say,  because  they  are  not  in  them- 
selves of  auv  value.  Neither  were  bonds,  bills,  and  other  securi- 
ties, whirl',  concern  mere  rhoses  in  action,  considered  as  subjects 
ot'l-'reiiy  at  common  law  ;  being  of  no  intrinsic  value,  and  not 
importing  any  properly  or  possession  of  the  person  from  whom 
they  are  taken. 

But  it  is  now  provided  by  statute,  "That  if  any  person  shall 
steal,  or  take  by  i  :>'>'). TV,  any  bill  of  exchange,  bond,  order,  war- 
rant, bill,  or  promissory  note  for  payment  of  any  money,  or  any 
certificate  or  other  public  security  issued  or  to  be  issued  by  the 
authority  of  the  United  States,  or  by  authority  of  tlie  legislature 
of  this  state,  for  payment  of  money,  or  eceipt 

of  money  or  goods,  being  the  property  of  any  other  person  or  per- 
sons, or  of  any  corporation,  notwithstanding  any  of  the  «*]-. 
ticulars  are,  or  may  b<-  termed  in  law  a  chose  in  ad  ill  be 

deemed  and  construed  to  be  felony,  of  the  same  nature  an.i 
same  degree,  and  in  the  same  manner  as  it.  would  '  if  the 

©Sender  had  stolen  or  taken   bj   robbery  any  cli  •  -f  the 

like  value  with  the  m->ae.y  diie  on  surh  '•;'.!,  hoed,  or-) 
or  note,  or  certificate,  or  other  public  stcurity.  •><  ^:  •  ured  i; 
and   remaining   unsaii>n.-:d,  and   such    •••  al'   sm!V;- 

punishment  as  he  or  she  ouj:1"  !i  oflVnder  ;>ad 

stolen  or  taken  by  robber;,  j  ^i  uii,  imu  salue,  as  afore- 

said."     Sess. '^'4.  c.  88.  i'it.  L.  174. 

"  Jf  any  record,  or  parcel  of  the  same,  writ,  return,  panel,  p^o- 
cess,  or  other  proceeding  in  the  court  of  chancery,  supreme  .  rt, 
exchequer,  or  in  any  other  court  of  record,  or  in  the  office  of  !»e 
secretary  of  this  state,  or  in  the  office  of  the  clerk  of  any  city  or 
county  in  this  state,  hath  been,  or  hereafter  shall  be  stolen,  or 
willingly  taken  away,  withdrawn  or  avoided,  by  any  clerk,  or  by 
any  other  person,  by  reason  whereof  any  judgment  shall  be  re- 
versed, then  every  such  stealer,  taker  -away,  withdrawer  or  avoid- 
er,  their  procurers,  counsellors  and  abettors,  being  convict'  .)  or 
attainted  thereof,  according  to  the  due  course  of  l;<vt  shall  be  .id- 
judged  guilty  of  felony."  Sess.  I  I.  c.  '22  s.  1.  I  R.  L.  1  i  2. 

"This  act  shall  not  extend  to  any  amendment  or  entry  made, 
or  to  be  made,  by  any  rule,  order,  judgment,  or  decree  of  any 
court."  s.  2. 

4»!noU.  Larceny  cannot  be  committed  of  such  nnir.irJs  in  which  there 

^SA.  is  no  property,  either  absolute  or  qua'iiii  d  .   as  .if  Leasts  It. 

"o^6SH.P6j7,'  ferK  nature:  and  unreclaimed,  such  as  deer  and  hares  in  a  forest; 


LARCENY  AND  ROBBERY.  289 

fish  in  an  open  river  or  pond ;  or  wild  fowls  at  their  natural  liber- 
ty. But  if  they  are  reclaimed  and  confined,  and  may  serve  for 
food,  it  is  otherwise,  even  at  common  law  :  for  of  deer  so  inclosed 
in  a  park  that  they  may  be  taken  at  pleasure,  fish  in  a  trunk,  and 
pheasants  or  partridges  in  a  mew,  larceny  may  be  committed.  But 
of  all  valuable  domestic  animals,  as  horses  and  other  beasts  of 
draught,  and  of  all  animals  domitce  naturce,  which  serve  for  food, 
as  neat  or  other  cattle,  swine,  poultry,  and  the  like,  and  of  their 
fruit  or  produce,  taken  from  them  while  living,  as  milk  or  wool, 
larceny  may  be  committed ;  and  also  of  the  flesh  of  such  as  are 
either  domitce.  offeree  naturce,  when  killed.  As  to  those  animals 
•which  do  not  serve  for  food,  and  which,  therefore,  the  law  holds 
to  have  no  intrinsic  value,  as  dogs  of  all  sorts,  and  other  creatures 
kept  foK  whim  and  pleasure,  though  a  man  may  have  a  bare  pro- 
perty therein,  and  maintain  a  civil  action  for  the.  loss  of  them,  yet 
they  are  not  of  such  estimation,  as  that  the  crini.-.  of  stealing  them 
amounts  to  felony. 

Larceny  can  only  be  of  a  thing  which  has  some  value  in  itself.    3IIa"£*c' 
Where  a  defendant  was  tried  and  convicted  before  a  special  ses-    Payne  v.  the 
aions  for  stealing  a  letter,  the  proceedings  having  been  removed   £j^8  Rep. 
by  certiorari,  the  conviction  was  quashed.     Per  curium.     The   i°i« 
Jetter   was  of  no  intrinsic  value,  nor  importing  any  property  in 
possession  of  the  person  from  whom  it  was  taken.     A  bond,  bill, 
or  note,  was  not  the  subject  of  larceny,  at  the  common  law  ;  and 
they  certainly  had  as  much  worth  in  themselves  as  this  letter. 
The  carrying  away  of  the  letter  was,  therefore,  neither  "  a  petty 
larceny,   misdemeanour,  breach  of  the   peace,  or  other  criminal 
offence,"  of  which   the  special  sessions  had  cognisance,  and  the 
conviction  must  be  quashed. 

5.   To  whom  the  property  stolen  must  be  charged  to  belong. 

With  respect  to  things  which  are  the  regular  subjects  of  pro-   2  East, P.  Cv 
perty,   felony  may  be  committed  in   stealing  them,  though    the    miwu.c.33, 
owner  be  not  known,  for  the  guilt  of  the  thief  is  the  same      And    *  ^9. 
he   may  he    charged  in  tho   indictment  with   having  stolen  the   2Hai«,'i8i, 
goods   of  a   person    to    the  jurors   unknown,  or  with  having  re-    29°* 
ceived  goods  stolen  by  a  person   unknown.      But  if  the  owner  be 
really  known,  an  indictment,  alleging  the  goods  to  be  the  property 
of  a  person  unknown,   would  be  improper:   in  that  case,  the  pri- 
soner must  be  discharged  of  that  indictr..ent,  and   tried  upon  a 
new  one,  for  stealing  the  goods  of  the  owner  by  name.     And  in 
prosecutions  for  stealing  the  goods  of  a  person    unknown,  some 
proofs  must  be  given  sufficient  to  raise  a  reasonable  presumption 
that  the,  taking  was  felonious  ;  for  it  is  not  enough  that  the.  prison- 
er is  unable  to  give  a  good  account  how  he  came  by  the  goods. 

Any  one  who  has  a  special  property  in  goods  stolen,  may  lay  2  East,  P.O. 
them  to  be.  his  in  an  indictment  for  larceny  ;  as  a  bailee,  pawnee,  "*•  1  **»•«» 
lessee  for  years,  Carrier,  or  th<;  like  ;  a  fortiori,  they  may  be  laid 

{  37   ] 


LARCENY  A.VD  ROBBERY. 

to  he  the  property  of  the  respective  owners,  and  the  indict 
is  good  Hither  way.  But  if  it  appear  in  evidence  that  the  party, 
whose  goods  they  are  laid  to  be,  had  neither  the  property  nor 
the  possession,  (and  for  this  purpose  the  possession  of  a  feme  co- 
vert or  servant  is,  generally  speaking,  the  possession  of  the  hus- 
hand  or  master.)  the  prisoner  ought  to  he  acquitted  on  that  in- 
dictment. The  same  rule  prevails  in  the  case  of  goods  belong- 
ing to  a  guest,  stolen  at  an  inn  ;  they  may  be  laid  to  be  the  pro- 
perty either  of  the  inn-keeper  or  the  guest.  So  goods  stolen 
from  a  washerwoman,  who  takes  in  the  linen  of  other  persons 
to  wash,  may  be  laid  to  be  her  goods.  So  where  floods  are  stolen 
out  of  a  stage  coach,  although  the  driver  be  not  the  owner  of  the 
coach,  and  be  not  liable  to  the  proprietors,  the  property  may,  not- 
withstanding, be  laid  to  be  in  the  driver. 

If  A.  steals  the  horse  of  B.,  and  afterwards  C.  steals  the  san>e 
horse  from  A.,  in  this  case  C  is  a  felon  both  as  to  A.  and  as  to 
B. ;  for  by  the  theft  by  A.,  B.  lost  not  the  property,  nor  in  law 
the  possession  of  his  horse,  and  therefore  C.  may  be  indicted  for 
taking  and  carrying  away  the  horse  of  B. 

0.   Of  the  felonious  inle7if. 

The  felonious  intent  is  essential  to  the  offence  ;  and  in  order  to 
mak-e  it  felony,  the  intent  to  steal  ought  to  be  at  the  time  when 
the  party  first  gets  possession  of  the  goods  ;  such  a  possession,  at 
least,  as  is  distinct  from  that  of  the  owner;  for  a  fraudulent  intent 
originating  afterwards,  to  convert  the  goods  to  his  own  use,  is  not 
felony ;  but  the  original  felonious  intent  may  be  collected  from 
the  subsequent  acts. 

It  has  been  already  stated,  that  a  finding  of  the  goods,  or  a 
delivery  by  the  owner,  (some  particular  cases  excepted,  which  I 
have  alluded  to,)  do  not  constitute  such  a  taking  as  amounts  to 
felony;  it  will  therefore  be  necessary,  in  this  place,  merely  tu 
mention  some  other  cases,  in  which  one  person  may  take  the 
goods  of  another,  but  which  are  rendered  excusable  from  the 
want  of  the  criminal  intent. 

Where  a  party  retakes  his  own  goods,  unless  it  be  done  with 
the  design  to  charge  the  bailee,  it  is  no  felony,  nor  so  much  as  a 
trespass.  As  if  A.  take  away  the  trees  of  B..  and  rut  them  into 
boards  ;  or  if  A.  take  the  hay  or  corn  of  B.  and  mingle  it  with  his 
own  heap  or  cock;  or  if -A.  take  the  cloth  of  B.  and  embroider  it 
with  silk  or  gold,  B.  may  retake  the  whole  heap  of  corn,  or  cock 
of  hay,  or  garment  and  embroidery  also  ;  so  much,  at  least,  I 
presume,'  says  Mr.  Ea?t,  as  cannot  easily  be  distinguished  from 
his  own.  And  here,  .the  same  writer  observes,  that  in  any  case, 
if  there  be  a  .y  fair  pretence  of  property  or  right  in  the  prisoner, 
or  if  it  be  brought  into  doubt  at  all.  the  court  will  direct  an  ac- 
q'rtt;-.!  .  for  i:  •  ;:;:<  such  di-putes  should  be  settjed  in  a 

manner  to  bnug  men's  lives  into  jeopardy. 


LARCENY  AND  ROBBERY.  291 

So  where  the  party  takes  the  goods  of  another  by  mistake,  as   maie,507. 
if  the  sheep  of  A.  stray  from  the  flock  of  A.  into   the  flock  of 
B.,  and  B.  drives  them  along  with  his  flock,  or  by  pure  mistake 
shears  them,   this  is  not  felony;  but  if  he  knew   them  to  be  ano- 
ther's, and  mark  them  with  his  mark,  this  is  an  evidence  of  felony. 

The  taking  may  amount  only  to   a  trespass,  and  the  circum-   2  East,  p.  c. 
stances  in  such  case  must  guide  the  judgment.     As  when  a  man    i*HJle  309. 
takes  another's  goods  openly  before  him,  or  before  other  persons, 
otherwise  than  by  apparent  robbery,  or  having  possessed  himself 
of  them,  avows  the  fact  before  he  is  questioned. 

So  where  a  man  takes  another's  harrow  or  plough,  and  after  iwd. 
ploughing  his  own  land,  returns  it  to  the  place' whence  he  took 
it,  or  tells  the  owner  of  his  using  it.  So,  taking  a  horse  off  the 
common,  and,  after  riding,  returning  it  there  again,  is  but  a  tres- 
pass ;  but  if  the  party  had  sold  it,  this  would  be.  declarative  of  the 
first  taking  being  felonious,  and  in  doubtful  cases,  the  safest  rule 
is,  to  incline  to  acquittal  rather  than  conviction. 

So,  where  the  prisoners  entered  another  man's  stable  at  night,    Philips  and 
and  took  out  his  horses  and  rode  them  thirty-two  milts,  and  left   2Ea"f  V.  c? 
them  at  an  inn,  and  were  afterwards  found  pursuing  their  journey    662< 
on  foot ;  the  jury  having  found  that  the  prisoners  took  the  horses 
merely  with  intent  to,  ride,  and  afterwards  leave  them,  and  not  to 
return  or  make  any  farther  use  of  them,  it  was  holden  trespass, 
and  not  larceny. 

II.  Mixed  larceny, 

Mixed  or  compound  larceny  is  such  as  has  all  the  properties  of  4Bia<Oi.Com 
the  former,  but  is  accompanied  with  the  aggravation  of  taking  240' 
from  one's  house  or  person.  I  shall,  in  this  place,  speak  only  of 
a  taking  from  the  house  :  larceny  from  the  person,  when  accom- 
panied with  violence,  is  usually  called  robbery,  and  will  be  consi- 
dered in  the  next  section :  a  secret  stealing  from  the  person  is 
with  us  no  more  than  simple  larceny,  the  statute  of  8  Eliz.  c.  4., 
by  which  the  felonious  taking  from  the  person  of  any  other  privily 
rvithout  his  knowledge,  is  subjected  to  a  higher  degree  of  punish- 
ment, not  having  been,  under  any  modification,  re-enacted  in 
this  state. 

By  the  act,  sess.  36.  c.  29.  s.  3.  the  "  feloniously  breaking  into 
or  taking  any  goods  or  chattels  from  any  dwelling  house,  any 
person  being  therein  and  put  in  fear,  or  of  robbing  any  dwelling- 
house,  any  person  being  therein,"  are  made  punishable  with  im- 
prisonment for  h'fe.  1  R.  L.  408. 

By  stat.  1  Ed.  6.  c.  12.  s.  10.  the  breaking  of  any  house  by  day   2  East.  p.  c, 
or   night,   any   person   being  in  the  house  and  put  in  fear,  is   de- 
prived of  the  benefit  of  clergy.     The  word  breaking  in  this  act, 
and  I  presume  the  same  construction  will  apply  to  our  statute,  is 
understood  to  be  such  a   breaking  as  amounts  to,   or  is  attended 


292  LARCENY  AND  ROBBERY 

with  some  felony  ;  and,  therefore,  if  the  house  he  broken  in  the 
daytime,  though  with  a  felonious  intent,  yet  if  nothing  he  taken, 
it  is  not  within  the  statute;  or  if  done  by  night,  it  must  be  such 
a  breaking  as  would  constitute  burglary.  But  where  goods  are 
taken  from  a  dwelling  house,  no  breaking  is  necessary  to  render 
the  offence  complete.  As  to  what  shall  be  a  dwelling-house 
within  the  act,  the  same  rules  prevail  as  in  the  case  of  burglary, 
s  East,  p.  c.  To  constitute  a  robbery  of  a  dwelling-house  within  the  next 
clause  of  the  act,  a  breaking  of  the  house  is  necessary,  (such  at 
least  has  been  the  construction  of  a  similar  English  statute,)  but  it 
does  not  require  that  any  person  should  be  put  in  fear. 

III.  Robbery. 

4Biack.Com.      -Open  and  violent  larceny  from  the  person,  or  robbery,  is  the 
^*3-  felonious  and  forcible  taking  from  the  person  of  another,  of  goods 

or  money  to  any  value,  by  violence  or  putting  him  in  fear. 

The  value  of  the  thing  taken  makes  no  difference  in  the  crime  ; 
c  a  Penn7'  as  ut^'  as  a  pound,  forcibly  extorted,  makes  robbery. 
"  But  something  must  be  taken  ;  for  an  assault,  with  an  intent  to 

rob,  is  an  offence  of  a  different  and  inferior  nature. 
3.  As  to  the  taking  which  is  necessary  to  constitute  robbery,  it 
'  is  not  always  necessary  that  there  should  be  a  taking  strictly  from 
the  person  ;  but  it  is  sufficient  if  it  be  done  in  his  presence,  pro- 
vided it  be  accompanied  with  violence  or  a  putting  in  fear ;  as 
where  a  carrier  drives  his  pack  horses,  and  the  thief  takes  his, 
horse,  or  cuts  his  pack,  and  takes  away  the  goods :  so  if  a  thief 
comes  into  the  presence  of  A.,  and  with  violence,  and  putting  A. 
in  fear,  drives  away  his  horse,  cattle  or  sheep ;  so,  if  A.  throw 
his  purse  or  cloak  in  a  bush,  and  B.  takes  it  up  and  carries  it 
away  ;  or  if  while  flying  from  the  thief,  he  lets  his  hat  fall,  and 
the  tiiief  take  it  and  carry  it  away. 

.  ^°  '^  tne  1'obber  restore  what  he  has  taken  ;  as  if  A.,  without 
drawing  his  weapon,  requires  B.  to  deliver  his  purse,  who  does 
deliver  it,  and  A.  finding  but  two  shillings  in  it,  gives  it  him  again, 
this  is  a  taking  by  robbery. 

.  ^  thieves  come  to  rob  A.,  and  finding  little  about  him,  enforce 
him,  by  menace  of  death,  to  swear  upon  a  book  to  fetch  them  a 
greater  sum.  which  he  does  accordingly,  although  not  in  con- 
science bound  by  such  compelled  oath,  yet  the  fear  continued, 
and  made  the  taking  robbery. 

But  if  the   taking   be  not  either  directly  from  his  person  or  in 
8 'sua/iois.    his  presence,  it  is  no  robbery.  ,  As  where  thieves    struck  money 
2Kast,  p.c.   out  of  the  owner's  hands,  and  by  menace  drove  him  off,  so  that 
he  could  not.  take  it  up,  ar^l  then  they  took  it  up  themselves  ;  it 
not  being  found  in  the  special  verdict,  that  they  took  up  the  mo- 
ney, in  the  sight  or  presence  of  the  owner,  the  court  would  not 
intend  .it. 


LARCENY  AND  ROffBERY.  293 

As  to  the  violence  necessary  :  No  sudden  taking  of  a  thing  un-  ^"^'^ 
awares  from  the  person,  as  by  snatching  any. tiling  from  the  hand  Ltach, 238.  " 
or  head,  is  sufficient  to  constitute  a  robbery*  unless  some  injury 
he  done  to  the  person,  or  unless  there  be  some  previous  struggle 
for  the  possession  of  the  property.      As,   where  a  hat  and  wig  was 
snatched  from  the  head  of  a  person  walking  in  the  street,   it  was 
held  no   robbery  ;  but  where  a  person  took  a  sword  from  a  gvn- 
tleman's  side,  and  it  appeared  that  the  gentleman  perceived  him 
laying  hold  of  his  sword,  and  that  he  himself  laid  hold  of  it  at 
the  same  time,  and  struggled  for  it,  this  was  adjudged  robbery. 

Robbery  may  also  be  constituted  by  putting  in  fear  as  well  as  * j^85^' c> 
by  force;  or  perhaps  in  strictness  it  may  be  said,  that  fear  will  ias>i29. 
supply  the  place  of  force  ;  yet  it  is  not  necessary  that  actual  fear 
should  either  be  laid  in  the  indictment,  or  strictly  and  precisely 
proved,  provided  the  property  be  taken  with  such  circumstances 
of  violence  or  terror,  or  threatening  by  word  or  gesture,  as 
would  in  common  experience  induce  a  man  to  part  with  it  from 
an  apprehension  of  personal  danger  :  but  it  is  necessary  that  it  be 
taken  against  the  will  of  the  party.  As  if  a  man  be  knocked 
down  without  any  previous  warning  to  awaken  his  fears  and  lies 
totally  insensible  while  the  thief  rifles  his  pockets,  it  is  robbery, 
and  yet  there  is  no  actual  fear.  Or  if  a  man  makes  resistance, 
but  is  overpowered,  and  his  property  taken  from  him  by  dint  of 
superior  strength,  this  is  robbery.  And  in  cases  where  a  man 
delivers  his  purse  without  resistance,  if  the  fact  be  attended 
with  those  circumstances  of  violence  or  terror  which,  in  common 
experience,  are  likely  to  induce  a  man  to  part  with  his  property 
for  the  safety  of  his  person,  that  will  amount  to  a  robbery. 

So,  where  a  person,  under  pretence  of  :ilms,  extorts  money  from  2E»«t,  P.  c. 
another,  if  at  the  time  there  are  indications  of  a  felonious  intent, 
and  the  other  gives  it  him,  through  apprehension  of  violence,  it  is 
robbery.     So,  a  man  will  not  be  allowed  to  shelter  himself  under 
colour  of  a  sale:  as  where  a  person,  by  force  or  threats,  compel 
another  to  give  him  goods,  and  by  way  of  coheir,  oblige  him  to 
take,    or  if  he  offer,  less  than  the  value.      But  it    is  doubted  iHawk.  c. 
whether  the    forcing   a  higler,    or  other    chapman,  to    sell    his  4  El'a 
wares,  and  giving  him  the  full  value  of  them,  amounts  to  so  244. 
heinous  a  crime  as  robbery. 

It  does  not  appear  necessary  that  the  fear  should  be  confined  2  East, p.  c. 
to  an  apprehension  of  bodily  harm ;  as  where  money  was  ex-  L',4jc^e'i64. 
torted  by  the  threat  of  charging  a  man  with  the  commission  of  an  i  u-ach,  229. 
unnatural  crime,  or  with  an  attempt  to  commit  such  crime,  it  was 
holden  robbery.     And  in  a  similar  case,  in  which  the  prisoner  was 
convicted,  the  prosecutor  swore  that  he  parted  with  his  money 
for  fear  of.  losing  his  character,  and  that  he  had  no  other  fear. 

So,  where  money,  extorted  hy  threats  of  pulling  down  the  pro-  j  East,  p.  c 
sccutor's  house  :  butinallthe  cases  of  this  kind,  the  danger  was  '2J8>i.i(.|i  3|0 
urgent;  the  threats  were  to  be  accomplished  by  the  agency  of  a  -i  East, p.  c." 
mob,  which  was  already  raised,  and  which  had  committed  similar  72y-73M32. 


294  LARCENY  AND  ROBBERY. 

acts  of  violence  :  they  were  of  immediate,  speedy  or  signal  mis- 
chief, and  the  execution  of  them  could  not  have  been  impeded  by 
any  ordinary  prudence  or  firmness,  or  by  any  recurrence  to  the 
protection  of  the  laws. 

i  Hale,  53 1.  The  putting  in  fear  must  be  previous  to  the  taking;  as  if  the 
thief  pick  another's  pocket,  and  take  his  purse,  and  is  not  disco- 
vered until  afterwards,  and  then,  on  its  being  demanded  of  him,  re- 
tains it  with  threats  of  violence,  it  is  only  larceny ;  for  here  the 
fear  is  subsequent. 

IV.  Punishment  of  larceny  and  robbery. 

"Robbing  any  person  in  any  place  whatsoever,"  is  punishable 
with  imprisonment  for  life.  Sess.  3d.  c.  2y.  s.  3.  1  R.  L.  408. 

"  If  any  person  shall  be  indicted  of  felony,  for  stealing  of  any 
goods  or  chattels  in  any  county  of  this  state,  and  thereof  be  con- 
victed or  attainted,  if  it  shall  appear  upon  evidence,  and  be  found 
by  the  jury,  that  the  said  goods  or  chattels  were  taken  by  robbery 
or  burglary,  or  in  any  other  manner,  in  any  other  county,  whereof 
if  such  person  had  been  convicted  by  a  jury  of  such  other  county, 
such  person  would  by  law  be  liable  to  imprisonment  in  the  state 
prison  for  life,  at  hard  labour,  or  in  solitude,  or  both  ;  then,  and  in 
every  such  case,  judgment  shall  be  given  that  the  said  offender  be 
imprisoned  in  the  said  prison  for  life,  at  hard  labour,  or  in  solitude, 
or  both."  Sess.  36.  c.  29.  s.  2.  1  R.  L.  408. 

The  punishment  of  simple  larceny  is  regulated  by  the  value  of 
the  property  taken;  and,  according  to  the  same  rule,  simple  lar- 
ceny is  itself  divided  into  petty  larceny,  or  the  stealing  to  a  small 
amount,  and  grand  larceny,  or  the  stealing  of  goods  of  a  greater 
value. 

"Every  person  who  shall  be  guilty  of  the  felonious  taking  and 
carrying  away  of  the  mere  personal  goods  of  another,  of  the  va- 
lue of  twelve  dollars  and  fifty  cents,  or  under,  if  unconnected  with 
any  other  crime,  shall  be  deemed  and  adjudged  guilty  of  petit  lar- 
ceny only  ;  and  every  person  who  shall  be  hereafter  duly  convict- 
ed of  petit  larceny,  shall  be  punished  by  fine,  not  exceeding  two 
hundred  dollars,  or  imprisoned  in  the  county  gaol  or  prison,  for  a 
term  not  exceeding  three  years."  Sess.  36.  c.  29.  s.  10.  1  R. 
L.  410. 

Grand  larceny  is  punishable  with  imprisonment,  not  to  exceed 
fourteen  years.  Sess.  36.  c.  29.  s.  5.  1  R.  L.  409. 

V.  Receivers  of  stolen  goods. 

JcreiM.  Receivers  of  stolen  goods  are  not  liable  as  accessories,  but  can 

only  be  punished  for  a  misdemeanour. 

"  It  shall  be  lawful  to  prosecute  and  punish  every  person  buying 
or  receiving  any  stolen  goods,  knowing  the  same  to  be  stolen,  as 
for  a  misdemeanour,  although  the  principal  felon  be  not  convicted 
i 


LIBEL.  295 

of  the  said  felony,  which  shall  exempt  the  offender  from  being 
punished  as  accessory  to  such  felony,  after  the  fact,  if  the  princi- 
pal shall  be  afterwards  convicted."  Sess.  36.  c.  8.  s.  6.  1  R. 
L.  196. 

'•  Where  any  person  shall  buy  or  receive  any  goods  or  chattels 
of  any  value  whatsoever,  that  shall  have  been  feloniously  taken 
away,  or  stolen  from  any  other  person,  knowing  the  same  to  be 
stolen,  whather  the  principal  be  convicted  or  not ;  and  every  per- 
son who  shall  aid,  abet,  assist,  hire,  command,  or  procure  any 
other  person  to  commit  the  same,  shall,  on  conviction,  be  punish- 
ed by  fine  and  imprisonment,  or  either;  or  instead  of,  or  in  addi- 
tion to  a  fine,  may  be  imprisoned  for  three  years,  and  for  the  se- 
cond offence,  shall  be  adjudged  to  imprisonment  for  a  time  not  i 
exceeding  five-  years."  Sess.  36.  c.  29.  s.  13.  1  R.  L.  4 1 0. 

VII.  Restitution  of  stolen  goods. 

*'  If  any  felon  do  rob. or  take  away  any  money,  goods  or  qhat- 
tels  from  any  person,  and  the  said  felon  be  thereof  indicted  and 
found  guilty,  or  otherwise  attainted,  by  reason  of  evidence  given 
by  the  owner  of  the  said  money,  goods,  or  chattels,  bills  of  ex- 
change, bills,  or  promissory  notes  for  the  payment  of  money,  so 
robbed  or  taken  away,  or  by  any  other,  by  his  procurement,  then 
such  owner  shall  be  restored  to  his  money,  goods,  or  chattels,  bills 
of  exchange,  bills  or  promissory  notes  for  the  payment  of  money, 
and  the  court  before  whom  the  felon  shall  be  §0  convicted,  may 
award  writs  of  restitution  for  the  said  money,  goods,  or  chattels." 
Sess.  36.  c.  8.  s.  14.  1  R.  L.  497. 

It  is  now  usual  for  the  court,  upon  the  conviction  of  a  felon,  to  4  Black, 
order  (without  any  writ)  immediate  restitution  of  such  goods,  as 
arc  brought  into  court,  to  be  made  to  the  several  prosecutors. 
And  if  not  restored,  the  party  may  maintain  trover  for  them,  into 
whosesoever  hands  they  may  have  come,  posterior  to  the  theft ; 
or  he  may  himself  peaceably  retake  them  wherever  he  may  find 
them,  or  bring  an  action  against  the  thief  for  the  trespass  or  con- 
version. Sess.  36.  c.  8.  s.  20. 


LIBEL. 

A  libel  is  a  malicious  defamation,  expressed  either  in  printing  *  ?*wkj 
or  writing,  and  tending  to  blacken  the  reputation  of  a  person,  and 
to  expose  him  to  public  hatred,  contempt,  or  ridicule.  And  the 
reason  why  it  is  punished  as  a  public  oilence,  is,  that  it  tends  to  a 
breach  of  the  peace,  by  provoking  the  parties  injured,  and  their 
friends  and  families,  to  acts  of  revenge. 

,  Not  only  charges  of  a  flagrant  nature,  and  which  reflect  a  moral  *  *|ac<Abr* 
turpitude  on  the 'party,  are  libellous,  but  also  sricb.  as  set  him  in  a  iHawk.c. 

»  73. 3.  7. 


296 

3  Johui.  Cai. 
191. 


9  Johns.  Hep. 

214. 

3  Johns.  Cat. 

354. 


Thomas  v. 
Croswell, 
7  Johns.  Rep. 
264. 


4  Slack. 
Con-..  150. 
1  Caines' 
Rep.  581, 


LIBEL. 

scurrilous,  ignominious  light;  for  tkese  equally  create  ill  blood, 
and  provoke  the  parties  to  acts  of  revenge,  and  breaches  of  the 
peace.  Hence  it  hath  been'held,  that  words,  though  not  scanda- 
lous in  themselves,  yet  if  published  in  writing,  and  tending  in  any 
degree  to  the  discredit  of  a  man,  arc  libellous,  whether  such  words 
defame  private  persons  only,  or  persons  employed  in  a  public 
capacity. 

The  following  definition  of  a  libel,  by  Mr.  Hamilton,  in  the  case 
of  the  People  v.  Croswell,  "is  drawn  with  the  utmost  precision," 
and  has  received  the  sanction  of  the  supreme  court.  A  libelis  a 
censorious  or  ridiculing  writing,  picture,  or  sign,  made  with  a  mali- 
cious and  mischievous  intent  towards  government,  magistrates,  or  in- 
dividuals. 

Thus,  these  words,  published  of  a  member  of  congress  in  a 
newspaper,  are  libellous;  he  is  a  fawning  sycophant,  a  misrepre- 
sentatire  in  congress,  and  a  grovelling  office  seeker;  he  has  aban- 
doned his  post  in  congress  in  pursuit  of  an  office. 

In  the  same  case  the  court  held,  that,  under  the  pretence  of 
publishing  the  proceedings  of  a  court  of  justice,  to  discolour  and 
garble  the  proceedings  t»y  the  comments  and  constructions  of  the 
writer,  so  as  to  effect  the  purpose  of  aspersing  the  characters  of 
those  concerned,  is  libellous. 

It  were  easy  to  collect  a  great  number  of  cases,  in  which  par- 
ticular words  and  expressions  have  been  adjudged  libellous  ;  but 
the  relative  importance  of  this  title  does  not  require  it  to  be  ex- 
tended to  any  length,  and  the  preceding  definitions  will,  I  pre- 
sume, be  sufficient  to  enable  the  reader,  in  ordinary  cases,  to  dis- 
criminate between  such  matter  as  is  libellous  and  such  as  is  not. 

To  render  the  offence  complete,  it  is  necessary  that  the  libel 
should  not  only  be  written,  but  should  be  published.  The  com- 
munication of  a  libel  to  any  one  person  is  a  publication  of  it:  and, 
therefore,  the  sending  an  abusive  pj-ivate  letter  to  a  man,  is  as 
much  a  libel  as  if  it  were  openly  printed.  Cor  it  equally  tends  to 
a  breach  of  the  peace. 

There  having  been  doubts  whether  the  jury,  on  the  trial  of  an 
indictment  for  a  libel,  could  give  their  verdict  >MI  the  whole  mat- 
ter in  issue,  and  whether  the  defendant  could  justify  himself  by 
showing  the  truth  of  th^  libel,  it  was  enact<  .  s.  c.  00.  s. 

1.  2  R.  L.  5,53,)  that  the  jury  should  determine  the  law  and  the 
fact,  under  the  direction  of  the  court,  in  like  manner  as  in  other 
criminal  cases,  and  not  be  required  to  find  the  defendant  guilty, 
merely  on  the  proof  of  the  publication  by  the  defend  int  of  the 
matter  charged  to  be  libellous,  and  of  the  sense  ascribed  thereto 
in  such  indictment ;  reserving,  however,  to  the  defendant  the  right 
of  applying  to  the  court  to  have  judgment  arrested 

By  sect.  2.  in  every  prosecution  for  writing  any  libel,  the  de- 
fendant may  give  in  evidence,  in  his  defence,  the  troth  of  the  mat- 
ter contained  in  the  publication  charged  as  lili."!i  .MS  ;  but  such, 
evidence  shall  not  amount  unto  a  justification,  unless  it  be  made 


LIMITATION  OF  ACTIONS.  297 

<  tovily  to  appear,  Unit  the  matt  PI-  charged  as  libellous,  was 
published  with  good  motives  and  for  justifiable  ends. 

Sect.  3.  limits  the  penalty  for   writing  or  publishing  a  libel  to 
imprisonment  not  exceeding  eighteen   months,   or  fine   not  ex- 

;ig  iive  thousand  dollars. 
Sect.  1.  abolishes  prosecutions  by  information  for  a  libel. 


LIMITATION  OF  ACTIQXS. 

I.  limitation  of  personal  actions. 
II.  Limitation  of  penal  actions  and  informations,. 
Hi.  Limitation  of  criminal  prosecutions. 

I.  Limitation  of  personal  actions. 

11  All  actions  upon  the  case  and  of  account,  other  than  actions  for 
•.-lender,  and  actions  which  concern  the  trade  of  merchandise  be- 
tween iw  reliant  and  merchant,  their  factors  or  servants,  and  all 
actions  of  debt  for  arrearages  of  rent,  or  founded  upon  any  con- 
tract without  specialty  ;  and  all  actions  of  trespass,  detinue  and 
in  for  goods  or  chattels;  and  actions  of  trespass  quare. 
clausum  fregit,  shall  be  commenced  and  sued  within  six  years  ni-xt 
after  the  cause  of  such  actions  accrued,  and  not  after  ;  and  all 
actions  for  assault,  battery,  wounding  and  imprisonment,  or  any 
of  them,  shall  be  commenced  and  sued  within  four  years  next- 
after  the  cause  of  such  actions  accrued,  and  not  after;  and  all  ac- 
tions on  the  case  for  words,  within  two  years  after  the  words 
:--po!-:i>ri,  and  not  after  :  Provided,  however,  That  if  in  any  of  the 
•;aii|  actions  judgment  shall  be  given  for  the  plaintiff,  and  the  same 
be  reversed  by  eiror;  or  if  a  verdict  pass  for  the  plaintiff,-  and 
upon  matter  alleged  in  arrest  of  judgment,  the  judgment  be  given 
against  the  plaintiff,  that  he  take  nothing  by  his  plaint,  writ  or 
bill  ;  or  if  any  of  the  said  actions  shall  be  brought  by  original, 
and  the  defendant  therein  be  outlawed,  and  shall  after  reverse 
the  outlawry,  in  all  such  cases  the  party  plaintiff,  his  heirs,  execu- 
tors or  administrators,  as  the  case  shall  require,  may  commence 
a  new  action,  from  time  to  time,  within  one  year  next  after  such 
judgment  reversed,  or  such  judgment  given  against  the  plaintiff, 
or  outlawry  reversed,  and  not  after:  Jlnd  provided  also,  That  if 
any  person  entitled  to  any  of  the  said  actions  shall,  at  the  time 
the  cause  of  action  accrued,  be  within  the  age  of  twenty-one 
years,  f«me  covert,  insane  or  imprisoned,  such  per.son  shall  be  at 
liberty  to  bring  the  said  actions  within  the  respective  times  above 
.1,  after  such  disability  removed  ;  and  if  any  person  against 
whom  any  cause  of  action  shall  accrue,  shall  be  out  of  this  state 
at  tin-  time  the  same  shall  accrue,  the  person  who  shall  be  enti- 
tled to  .sach  action,  shall  be  at  liberty  to  bring  the  same  wilh- 

['38  ] 


'298  LIMITATION  OF  ACTIONS. 

in   the   times    respectively    above    limited,    after  the   return    of 
the   person  so  ab-.ent  into  this  state."     Sess.  2t.  c.    1.83.  s.  5. 
I  R.  L.  I  80. 
4B»c.  Abr.          The  statute  does  not  extend  to  debts  by  specialty,  and  hence 

47i.  i72  an  action  of  debt  for  the  arrearages  of  rent  reserved  on  a  lease  by 

1  Saund.  37.      .  .  ' 

aSauud. r>4.  indenture,  is  out  of  the  statute  :  neither  does  it  extend  to  an  ac- 
tion of  debt  for  an  escape,*  the  statute  speaking  only  of  actions 
of  debt  founded  upon  any  contract ;  and  an  action  of  debt  on  an 
award  under  seal,  though  the  submission  were  by  parol,  is  not 
within  the  statute 

Hiiiiheii  v.  The  statute  of  limitations  is  a  good  plea  in  an  action  on  a  judg- 

sJohns'Rep.    merit   recovered   in   another   state,  or   in  a  foreign  country  :  for 
^lialL*         such  a  judgment  is  not   a  specialty,   but  a  simple  contract  debt 
iiJoiins.          only,  on  which  an  action  of  debt  or  assumpsit  will  lie. 
N^'j(  *    '  The  limitation  of  the  country  or  state  in  which  the  action  is 

Tiipper^         brought,  and  not  that  in  which  the  contract  was  made,  or  the  de- 
)U'i>"'io2.        mand  arose,  is  to  be  observed. 

KucHiti  v.          This  statute  cannot  be  a  bar,  unless  the  six  years  are  expired 
3 .Toims. Hep.  after  there  hath  been  a  complete   cause  of  action;  as  if  a  mai; 
fiiac.  Abr       promise  to  pay  [01.  to  J.  S.  when  he  comes  from  Rome, or  when 
474.  cites        he  marries,  -and  ten  years  after  J.  S.  marry,  or  come  from  Rome, 
the  right  of  action  accrues  from  the  happening  of  the  contingen- 
cy, from  which  time  the  statute  shall  be  a  bar,  and  not  from  the 
time  of  the  promise. 

ibid.  So,  in  an  action  on  the  case,  wherein  the  plaintiff  declared,  that 

in  consideration  that  he  would  forbear  to  sue  the  defendant  for 
some  sheep  killed  by  his  (the  defendant's)  dog,  the  defendant 
promised  to  make  him  satisfaction  upon  request,  and  that  such  a 
time  he  requested,  £tc.  the  right  of  action  accrued  from  the  re- 
quest, and  not  from  the  time  of  killing  the  sheep ;  and  there- 
.  fore  the  defendant  could  not  plead  the  statute  of  limitations,  the 
request  being  within  six  years,  though  the  killing  the  sheep  and 
promise  of  satisfaction  was  long  before. 

•\vittmiiam          On  a  mere  loan  of  money,  the  time  of  limitation  commences 
]'i,,1;ailj'HCav"  from  the  time  of  the  loan ;  yet  where  the  money  is  lent  on  a  spe- 
uiae'k.  03i.      cial  contract  for  repayment,  it  is  the  time  of  the  repayment  that 
ought  to  fix  the  period  of  the  limitation.     So  where  a  bill  of  ex- 
change was  drawn  payable  at  a  certain  future   period,   for  a  sum 
Ic.nt   by    the    payee   to   the   drawer   at  the  time  of  drawing  the 
bill,  the  payee  was  allowed  to  recover  the  money  in  an  action  for 
money  lent,  though  nix  years  had  elapsed  since  the   time   when 
the  money  was  advanced. 

s  Taunt.  323.  No  debt  accrues  on  a  bill  payable  a  certain  number  of  days 
after  sight,  until  it  is  presented  for  payment;  therefore,  the  sta- 


It  is  otherwise  as  to  an  action  on  the  case  for  an  escape. 


LIMITATION  OF  ACTIONS.  299 

tute  of  limitations  is  no  bar  to  such  a  note,  unless  it  has  been  pre- 
sented for  payment  six  years  before  the  action  commenced. 

The  exception  in  the  statute  as  to  actions  which  concern  the   name-hand,  r 
trade  of  merchandise  between   merchants,  must   be  confined  to  2  John^Ren' 
actions  on -open  or  current  accounts  :  they  do  not  extend  to  ac-   200. 
counts    stated.     It  must  be  a  direct  concern  of  trade  ;  liquidated 
demands,  or  bills  and    notes,  which   are   only  traced  up  to  the 
trade   of  merchandise,  are  too  remote  to  come   within   this  "de- 
scription. 

But  though    the   exception  in   the  statute  is  so  far  limited  to   4  n»c.  AIM-. 
transactions  merely  between  merchant  and  merchant,  that  where   j™^  Jgjerni 
there  is  no  item  of  account  at  ah1  within  six  years  before  the  ac-   Bull.  N.  P. 
tion  brought,  the  plaintiff  will  be  precluded,  unless  he  can  show 
that   the   accounts   were  between  merchant  and  merchant,  &LC.  ; 
yet  a  mutual  account   of  any  sort  between  a  plaintiff  and  defen- 
dant, though  neither  of  them  of  the  description  of  merchant,   for 
any  item  of  which  credit  has  been  given   within  six  years,  is  evi- 
dence of  a  promise  to  pay  the  balance,  and  will  take  the  case  out 
of  the  statute  of  limitations.      But  where  all  the  items  of  an  open, 
unliquidated  account  are  on  one   side,  the  last  item  which  hap- 
pens to  be  within  six  years,  shall  not  draw  after  it  tfiose  that  are 
of  longer  standing. 

The  exception  as  to  defendants  out  of  the 'state  extends  to  fo-   Ruggleiv. 
rcigners,  or  those  who  have  resided  altogether  out  of  the   state,    3Vjui,i>s. 
as  well  as  to  citizens  of  the  state  who  may  be  absent  for  a  time.      Kep.  203. 

The  coming  from  abroad  must  not  be  clandestine,  and  with  an   jrowi,r  v. 

intent  to  defraud  the  creditor  by  setting  the  statute  in  operation,    Hunt, 

,  *  '     lojolms.Rtj>. 

and  then   departing.     It  must  be  so   public,   and  under  such  cir-    -ic-i. 

cumstances,  as  to  give  the    creditor  an  opportunity,  by   the  use 
of  ordinary  diligence  and  due  means,  of  arresting  the  defendant. 

If  the  debtor  departs  after  the  cause  of  action  has  accrued,  the    P«kv. 
action  must  be  brought  within  the  six  years.  The  general  rule  is,   fjoiu!s.'R«-i>. 
that  when  the  statute  of  limitations  once  begins  to  run,  it  conti-    1G5> 
nuesto  run,  notwithstanding  any  subsequent  disability. 

If  the    defendant  plead  the  statute  of  limitations,  and  the  de-    cMod.aos. 
fendant   take  issue   upon  it,  evidence  of  a  promise  by  the  defen-   a.^.''^ 
dant,  within  six  years  before  the  commencement  of  the  action, 
to  pay  the  debt,  is  sufficient  to  take  the  case  out  of  the  statute. 

And  though  it  be  a  conditional  promise,   it   is  sufficient  if  the    i  Lii.  nayrr. 
plaintiff  performs  the  condition  ;  as  where  in  assumpsit  for  goods    j^^2^,. 
sold    and  delivered,  the   defendant  denied  that  he    bought  the    2  saumi.  04, 
goods,  but  said,  prove  it,  and  I  will  pay  you  :  this  promise,  with 
a  proof  of  the  debt,  was  held  to  take  the  case  out  of  the  statute. 

An  acknowledgment  of  the   debt  takes  it  out  of  the  statute,    zsaumi.  c-i. 
even  though  it  be  after  the   commencement   of  the,   action,  and    2  jtinr.  usa. 
the  slightest  acknowledgment  has  been  held  sufficient  ;  as  saying,    j'^1':  5,'i8,;ri 
"  I  am  ready  to  account,  but  nothing  is  due  to  you  ;"  or,  "  if  he  has 
any  demand  on  tn»>,  if  shall  be  settled,"  will  takn  a  debt  out  of  the 
statute, 


300  LIMITATION  OPs  ACTIONS. 

siuby  r.  If  the  defendant,  on  being  arrested  by  the  sheriff,  promises  to 

V'.^',!!''"'       settle  with  the  plaintiff  if  he  will   give   time  fur  payment,   it  is  a 
lUp.  401.        sufficient   acknowledgment  to  prevent  the   operation  of  the  sta- 
tute. 

s^iii?  V'  Where  to  a  demand  of  a  debt  above  aix  years  standing,  the 

4Esp!36.  party,  on  being  applied  to  tor  payment,  says,  "  I  tiiink  lam 
bound  in  honour  to  pay  the  money,  and  shall  do  it  wbei.  t  am 
able,"  is  a  conditional  promise  only,  and  not  an  absolute  one  to 
take  it  out  of  the  statute  of  limitations.  •  Where  a  defendant  has 
made  a  promise  to  pay  a  debt  when  he  is  able,  it  nm«l  be 
shown  that  he  was  able  at  the  time  when  the  action  was 
brought. 

ivrnara  Where  A.  offered  to  pay  a  debt  barred  by  the  statute  of  liniita- 

sJu!ms.ktp.  lions  in  certain  specific  articles,  it  was  held  that  the  promise  was 
conditional,  and  that  the  plaintiff  was  bound  to  show  that  he  of- 
fered, and  was  ready  to  accept  the  specific  articles. 

Pins'*"  ^n  an  ac*'on  on  two  notes,  in  which  the  defendant  had  pleaded 

lojuims.  the  statute,  it  was  proved  that  the  defendant,  about  two  years 
before  the  suit  was  brought,  was  shown  the  notes,  and  admitted 
that  they  were  given  for  an  honest  debt,  but  said  that  they  had  been 
paid,  and  that  he  had  sent  the  money  to  B.,  and  supposed  that  he 
had  paid  the  plaintiff;  but  that  if  B.  had  not  paid  the  notes,  the 
defendant  said  that  he  would  pay  them  ;  that  he  would  not  plead 
the  statute  of  limitations  unless  the  money  had  been  paid,  and  he 
thought  he  could  make  that  appear:  it  was  lit  Id  that  this  was 
sufficient  to  take  the  case  out  of  the  statute,  and  to  cast  upon  the 
defendant  the  necessity  of  prosing  payment. 

Culver*"          ^n  an   act'on  on   a  promissory  note,  the  defendant  pleaded  the 
11  Johns.         statute  of  limitations,  and  the  plaintiff  proved  that  within    a   year 
•p.  145.        of  the  trial,   and  after  the  commencement  of  the  suit,  the  defen- 
dant, OB  being  shown  the  note,  admitted  that  he  had  executed  it, 
but  said  it  was  outlawed,  and  that  he   meant  to  avail    himself  of 
thj  statute  of  limitations ;  this  was  held  not  to  be   sufficient  evi- 
dence of  a  promise  to  pay  within  six  years.     An  acknowledgment 
does  not  revive  the  old  debt ;  but  is  evidence  only  of  a  new  pro- 
mise, of  which  the  former  debt  is  the  consideration. 

2  Sau«d.  63.  jf  the  defendant  would  take  advantage  of  this  statute,  it  is  ne- 
cessary for  him  to  plead  it,  although  the  caus-e  of  action  appears 
on  the  declaration  to  have  accrued  upwards  of  six  years  before, 
and  he  will  not  be  permitted  to  give  it  in  evidence  on  the  general 
issue. 

II.  limitation  of  penal  actions  and  informations. 

"  All  actions,  informations  and  indictments,  which  at  any  time 
hereafter  shall  be  brought,  sued  or  exhibited  for  any  forfeiture 
upon  any  penal  statute,  made  or  to  be  made  ;  whereby  the  for- 
feiture is  or  fhall  be  limited  to  the  people  of  this  state  only,  shall 
be  brought,  sued,  or  exhibited,  svithin  two  years  next  after  the  of- 


LIMITATION  OF  ACTIONS.  301 

ft  nee  committed,  or  to  be  committed  against  such  penal  act,  and 
not  after  ;  and  all  actions  or  iBformations  which  shall  at  any  time 
hereafter  be  brought,  sued  or  exhibited  for  any  forfeiture  upon 
at,  v  penal  statute,  made  or  to  be  made,  the  benefit  and  suit  where- 
of is  or  shall  be  by  the  said  statute  limited  or  given  to  any  person 
Kill  prosecute  for  the  same,  or  to  the  people  of  this  state, 
and  to  ai.y  other  who  shall  prosecute  in  that  behalf,  shall  be 
brought,  sued  or  exhibited  by  any  person  who  may  lawfully  pur- 
sue- !%r  the  same,  within  one  year  next  after  the  offence  commit- 
ted, or  to  lie  committed  against  the  said  statute  ;  and  in  default  of 
such  pursuit,  that  then  the  same  shall  be  sued,  brought,  or  exhi- 
bited for  the  people  of  this  state  at  any  time  within  two  years 
after  that  year  ended  ;  and  all  actions  or  informations  which  shall 
at  any  time  hereafter  be  brought,  sued  or  exhibited  for  any  for- 
feiture or  cause  upon  any  statute,  made  or  to  be  made,  the  bene- 
fit and  suit  whereof  is  or  shall  be  given  or  limited  to  the  party  ag- 
grieved, shall  be  brought,  sued  or  exhibited  within  the  space  of 
three  years  next  after  the  offence  committed,  or  to  be  commit- 
ted, or  cause  of  action  accrued,  and  not  after;  and  if  any  action, 
information  or  indictment,  for  any  offence  against  any  statute, 
made  or  to  be  made,  shall  be  brought  after  the  time  in  that  behalf 
above  limited,  the  same  shall  be  void  :  Provided  always,  That 
where  any  action,  information,  indictment,  or  other  suit,  is  or  shall 
be  limited  by  any  statute,  to  be  sued,  brought  or  exhibited,  within 
a  shorter  time  than  is  hereby  limited,  then  the  same  shall  be 
brought  within  the  time  limited  by  such  statute."  Sess.  24.  c. 
183.  s.  t>.  1  R.  L.  ISO. 

It  is  unnecessary  for  the  defendant,  in  a  penal  action,  to  plead  2Sauml.cs. 
the  above  act,  but  he  may  take  advantage  of  it  on  the  general  issue  ;  ^'b"  '4l37Bac' 
for  the  statute  says,   the    same   shall    be  void,   consequently  the 
party  does  not  owe  the  penalty  demanded,  the  informer,  in  such 
case,  not  having  a  right  to  demand  the  penalty;  and  the  practice 
is  said  to  be,  for  the  defendant  to  call  upon  the  plaintiff  to  prove 
the  commencement  of  his  action  within  the  limited  period.     The 
party  grieved  is  not  within  the  restraint  of  the  statute,   but  may 
sue  in  the  same  manner  as  before. 

III.  Limitation  in  criminal  prosecutions, 

"All  suits,  informations  and  indictments  which  shall  hereafter 
be  brought  or  exhibited  for  any  crime  or  misdemeanour,  murder 
excepted,  shall  be  brought  or  exhibited  within  three  years  next 
after  the  offence  shall  have  been  committed,  and  not  after,  and  if 
brought  or  exhibited  after  the  time  hereby  limited,  the  same  shall 
be  void  :  Provided,  however,  that  if  the  person  against  whom  such 
suit,  information  or  indictment  shall  be  brought  or  exhibited,  shall 
not  have  been  an  inhabitant  or  usually  resident  within  this  state 
during  the  said  three  years,  then  the  same  shall  or  may  be  brought 
or  exhibited  against  such  person  at  any  time  within  three  years. 


302  LOTTERIES. 

during  which  he  shall  be  an  inhabitant  or  usually  resident  within 
this  state,  after  the  offence  committed:  And  provided  also,  that 
where  any  suit,  information,  or  indictment,  for  any  crime  or  mis- 
demeanour, is  limited  by  any  statute  to  be  brought  or  exhibited 
within  a  shorter  time  than  is  hereby  limited,  then  the  same  shall 
be  brought  or  exhibited  within  the  time  limited  by  such  statute." 
Sess.  24.  c.  183.  s.  7.  1  R.  L.  1ST. 


LOTTERIES. 

The  act  to  prevent  private  lotteries,  and  to  restrain  iti&vrance  of 
lottery  tickets,  sess.  36.  c.  10.  s.  1.  2  R.  L.  188,  declares  every  lot- 
tery, other  than  such  as  shall  be  authorized  by  the  legislature,  a 
common  and  public  nuisance  ;  and  such  offence  is  cognizable  be- 
fore the  supreme  courts,  the  courts  of  oyer  and  terminer,  and  the 
courts  of  general  sessions  of  the  peace  ;  and  those  courts  are  re- 
quired to  direct  the  grand  jurors  to  inquire  of,  and  to  present  or 
indict  all  offences  against  this  act. 

"No  person  or  persons  shall,  within  this  state,  open,  set  on 
foot,  carry  on,  promote,  dra*v,  or  make,  publicly  or  privately,  any 
lottery,  game,  or  device  of  chance,  of  any  nature  or  kind  what- 
soever, or  by  whatever  name,  denomination  or  title  it  may  be  cal- 
led, known  or  distinguished,  or.  shall,  by  any  such  ways  or  means, 
expose  or  set  to  sale  any  houses,  lands,  tenements,  or  real  estate, 
or  any  goods,  wares,  merchandises,  cash,  or  other  thing  or  things 
whatsoever,"  and  offenders  who  shall  be  convicted  in  either  of 
the  courts  mentioned  in  the  first  section  of  this  act,  shall  forfeit 
the  amount  of  the  whole  sum  or  value  for  which  such  lottery  was 
made,  and  if  such  sum  or  value  shall  not  be  satisfactorily  ascer- 
tained to  the  court  at  the  time  of  trial,  then  he  shall  forfeit  one 
thousand  two  hundred  and  fifty  dollars,  and  be  committed  until 
tfie  forfeiture  and  costs  be  paid.  s.  3. 

"  If  any  person  shall  vend,  sell  or  barter,  or  offer  to  vend,  sell 
or  barter  any  ticket  or  tickets  of  any  lottery,  other  than  such  as 
shall  be  authorized  by  the  legislature  of  this  state,  or  of  any 
game  or  device  of  chance  ;  or  if  any  person  or  persons  shall  pur- 
chase the  same,  or  in  any  other  way  become  adventurer  or  adven- 
turers therein,  or  be  any  ways  concerned  in  such  lottery,  game  or 
device  of  chance,  either  by  printing,  writing,  or  any  other  ways 
publishing  an  account  thereof,  or  where  tickets  may  be  had  or 
obtained  for  the  same,  or  be  in  any  wise  aiding  or  assisting  in  the 
same,"  on  conviction  in  any  of  the  before  mentioned  courts,  shall 
forfeit  the  sum  of  fifty  dollars,  s.  3. 

••  1 :  shall  not  be  lawful  fur  any  person  or  persons  whomsoever, 

to  open,  set  up,  exercise,  or  keep,  by  himself  or  herself,  or  by  any 

other  person  or  persons,  any  office  or  other  .place  for  registering 

-inker  or.uiunbers  of  any  ticket  or  tickets  in  any  public  or 


LOTTERIES. 

private  lottery,  authorized,  or  not  authorized  by  any  law  of  this 
state,  or  of  ;uiy  other  state  or  country,  or  lor  registering  the  num- 
bers or  number  of  any  ticket  or  tickets  in  any  other  lotteries, 
whether  public  or  private,  and  whether  authorized  by  any  law  of 
any  other  state  or  country  or  not,  or  by  writing,  printing,  or  other- 
wise to  publish  the  setting  up,  opening  or  using  any  such  oflice  or 
offices,  or  other  place  :  ,/lnd  further,  if  any  person  or  persons  shall 
offend  against  this  act  in  any  of  the  matters  last  aforesaid,  he,  she 
or  they  shall  be  deemed  guilty  of  a  misdemeanour,  and  shall,  up- 
on conviction,  be  fined  in  a  sum  not  exceeding  two  hundred  and 
fifty  dollars,  or  be  imprisoned  for  a  time  not  exceeding  three 
months,  by  any  court  having  cognizance  thereof:  Provided  al- 
ways, that  nothing  herein  before  contained  shall  be  deemed  OP 
taken  to  prevent  any  person  or  persons  who  shall, have  tickets 
for  sale,  from  keeping  a  check  book,  to  enable  him  or  her  to  know 
what  tickets  are  drawn  or  undrawn,  for  the  purpose  of  making 
sale  of  tickets  during  the  time  of  the  drawing  of  any  such  lottery 
or  lotteries."  s.  7. 

"  It  shall  not  be  lawful  for  any  person  or  persons  whomsoever*, 
to  sell  the  chance  or  chances  of  any  ticket  in  any  such  lottery  as 
aforesaid,"  (see  last  section)  "  or  to  insure  for  or  against  the  draw- 
ing of  any  such  lottery  as  aforesaid,  or  to  insure  for  or  against  the 
drawing  of  any  such  ticket  or  tickets,  or  to  receive  any  money  or 
goods  in  consideration  .of  any  agreement  to  repay  any  sum  or 
sums,  or  to  deliver  the  same  or  other  goods,  if  any  such  ticket  or 
tickets  shall  prove  fortunate  or  unfortunate,  or  any  other  chance 
or  event  relative  to  the  drawing  of  any  such  ticket  or  tickets,  whe- 
ther as  to  their  being  drawn  fortunate  or  unfortunate,  or  the  time  of 
their  being  drawn  or  otherwise  howsoever,  or  under  any  pretence, 
device,  form,  denomination  or  description  whatsoever,  to  promise 
or  agree  to  pay  any  sum  or  sums,  or  to  deliver  any  goods,  or  to 
do,  or  forbear  doing  any  thing  for  the  benefit  of  any  person  or 
persons,  whether  with  or  without  consideration,  on  any  event  or 
contingency  relative  or  applicable  to  the  drawing  of  any  such 
ticket  or  tickets,  or  the  number  or  numbers  of  any  ticket  or 
tickets,  or  to  publish  any  proposal  for  any  of  the  purposes  afore- 
said;  and'if  any  person  or  persons  shall  offend  against  this  act  in 
any  of  the  matters  last  aforesaid,  he,  she  or  they  shall  be  deem- 
ed guilty  of  a  misdemeanour,  and  shall,  upon  conviction,  be  fined 
in  a  sum  not  exceeding  two  hundred  and  fifty  dollars,  or  be  im- 
prisoned for  a  time  not  exceeding  three  months,  by  any  court 
having  cognizance  thereof."  s.  8. 

"  It  shall  not  be  lawful  for  any  person  or  persons  whomsoever, 
to  sell  any  share  or  shares  of  any  ticket  in  any  such  lottery  as 
aforesaid,"  (that  is,  in  any  public  or  private  lottery,  authorized  or 
not  authorized  by  any  law  of  this  state,  or  of  any  other  state  or  coun- 
try,) "  nor  any  whole  ticket,  without  being  the  owner  or  owners 
of  such  ticket  at  the  time  of  such  sain  :  and  all  and  every 


•n 
.304  LUMBER. 

or  persons  who  shall  offend  against  this  act  in  either  of  th- 
spects,  shall  forfeit  and  pay  the  sum  of  twenty-five  do. 

••  The  penally  mentioned  in  the    last  pr^ct-din^  may 

be  recovered  by  action  of  debt,  with  costs  of  suit,  in  any  court 
having  cognizance  thereof,  by  any  person  who  will  prosecute  for 
the  same  ;  the  one  moiety  thereof,  when  recovered,  shall  he 
paid  to  the  overseers  of  the  poor  of  the  city  or  town  wher. 
offence  shall  be  committed,  for  the  use  of  the  poor  thereof,  and 
the  other  moiety  to  the  person  who  shall  sue  for  the  same."  s.  10. 

"  The  justices  of  the  peace,  mayors,  sheriffs,  bailiffs,  con- 
stables, and  other  civil  officers  within  their  respective  jurisdic- 
tions, are  hereby  empowered,  directed  and  required,  to 
their  utmost  endeavours,  by  all  lawful  way*  and  means,  to  pre- 
vent the  opening,  setting  on  foot,  or  drawing  any  such  unlawful 
•lotteries,  games,  or  devices  of  chance,  prohi  'itvd  by  this  act." 

B.  11. 

But  it  is  provided  in  the  above  section.  "  That  this  act.  or  any 
clause,  matter,  or  thing  therein  contained,  shall  not  affect  or   be 
deemed,  judged  or  construed  to  affect  any  lottery  orlotter 
tablished,  or  to  be  established,   by  or  under  the  authority 
United   States  in   congress    assembled,    or   any    act.    m;itter    or 
thing,  done  or  to  be  done  in  anywise  relating  to  such  lottery  or 
lotteries,  by  any  person  whomsoever." 
Hunt  T.  A.   lottery  instituted   bv    the   laws   of  another  state,  is  within 

K.ucker-  -  •  <* 

backer.          the  act  to  prevent  pnvate,  lotteries. 
5  Johns.  Rep. 


3J7. 


LUMBER. 

The  first  section  of  the  act/or  thf  inspection  of  lumber,  sess.  30. 
c.  tit).  I  R.  L.  237.  provides  for  the  appointment  of  inspectors. 

"  If  any  person  or  persons  shall  ship  on  board  any  sfiip  or  ves- 
sel for  exportation  to  a  foreign  market,  any  lumber  that  has  not 
been  inspected  by  some  of  said  inspectors,   he  or  they  shall  for- 
feit and  pay,  for  every  thousand  feet  superficial  measure,  the  «um 
of  two  dollars  and  fifty  cents,  and  for  every  thousand  feet  cubic 
measure,  the  sum  of  five  dollars,  to  be  recoxrred,   wiih  cj 
suit,  in  any  court  having  cognizance  of  the  same,  the  one  half  to 
the  use  of  the  poo'r  in  the  cifv  or  town  in  which  such  suit  imy  be 
had,  and  the  other  half  to  the  prosecutor  :  and  if  any  p- 
than  those  appointed  by  law,  shall  be  convicted  of  practisi; 
duties  of  inspectors  of  lumber,    t<»  the  injury    of  said 
such  offender  shall  forfeit  to  tht-   inspectors  ten  dollars  for  every 
such  offence,  to  be  recovered  as  aforesaid."  s.  5. 


LUNATICS.  305 


LUNATICS. 

The  more  general  description  of  a  person,  who  from  his  want  *  B»C.  Abr. 
of  reason  and  understanding  comes    within  the  protection  of  the   j  n'ale.v.c. 
!a\v,  is  that  of  non  compos  mentis.     Every  person  of  the  age  of  dis-  33- 
cretion   is,  in  law,  presumed  to  be  of  sound  mind  and  memory, 
unless  the  contrary  appear,  and  this  rule  holds  as  well  in  civil  as 
in  criminal  cases. 

Non  compos  mentis  is  of  four  kinds.  1st.  Idiots,  who  are  of  Co.  Lit.  MT.  ' 
non-sane  memory  from  their  nativity,  by  a  perpetual  infirmity. 
2dly.  Those  that  lose  their  memory  and  understanding  by  the  vi- 
sitation of  God,  as  by  sickness  or  other  accident.  3dly.  Lunatics 
who  have  sometimes  their  understanding  and  sometimes  not. 
4thly.  Drunkards,  who,  by  their  own  vitions  act,  for  a  time  de- 
prive themselves  of  their  memory  and  understanding. 

An  idiot,  or  natural  fool,  is  one  that  hath  no  understanding  from  J^'1^'0^" 
his  nativity  ;  and  therefore  is  by  law  presumed  ne-ver  likely  to  at- 
tain any.  A  man  is  not  an  idiot  if  he  hath  any  glimmering  of 
reason,  so  that  he  can  tell  his  parents,  his  age,  or  the  like  com- 
mon matters.  But  a  man  who  is  born  deaf,  dumb,  and  blind,  is 
looked  upon  by  the  law  as  in  the  same  State  with  an  idiot  ;  he  be- 
ing supposed  incapable  of  any  understanding,  as  wanting  all  those 
senses  which  furnish  the  human  mind  with  ideas.  A  lunatic  is 
one  who  hath  had  understanding,  but  by  disease,  grief,  or  other 
accident,  hath  lost  the  use  of  his  .reason.  A  lunatic,  is  indeed 
properly  one  that  hath  lucid  intervals;  sometimes  enjoying  his 
senses,  and  sometimes  not,  and  that  frequently  depending  upon 
the  change,  of  the  moon. 

It  is  a  general  rule  that  idiots  and  lunatics,  b^ing,  by  reason  of  1  Hawk. P.C. 
the-ir  natural   disabilities,  incapable  of  judging  between  good  and 
cvif,  are  punishable  by  no  criminal  prosecution  whatsoever. 

All  the  several  pleas  and  excuses,  which  protect  the  commit-  4  Riaek.^ 
ting  of  a  forbidden  act  from  the  punishment  which  isotherwi.se 
annexed  thereto,  may  be  reduced  to  this  single  consideration,  the 
want  or  defect  of  will.  An  involuntary  act,  as  it  has  no  claim  to 
merit,  so  neither  can  it  induce  any  guilt:  the  concurrence  of  the 
will,  when  it  has  its  choice  either  to  do  or  to  avoid  the  fact  in 
question,. being  the  only  thing  that  renders  human  actions  either 
praiseworthy  or  culpable.  Indeed,  to  make  a  complete  crime, 
cognisable  by  human  laws,  there  must  be  both  a  will  and  an  act. 
For,  though  in  foro  conscienti ce,  ?.  fixed  design  or  will  to  do  an 
unlawful  act  is  almost  as  heinous  as  the  commission  of  it ;  yet,  as 
no  temporal  tribunal  can  search  the  heart,  or  fathom  the  inten- 
tions of  the  mind,  otherwise  than  as  they  are  demonstrated  by 
outward  actions,  it  therefore  cannot  punish  for  what  it  can- 
Dot  know.  For  which  reason,  in  all  temporal  jurisdictions,  au 
overt  act,  or  some  open  evidence  of  an  intended  crime  is  neer  - 
aarv,  in  order  to  demonstrate  the  depravity  of  the  will,  before  the 


306  LUNATICS. 

man  is  liable  to  punishment.  And,  as  a  vicious  will,  without  a 
vicious  ;ict,  is  no  oivil  crrne,  so,  on  the  other  han-i,^,'  '.tiiwarnint- 
able  act,  without  a  vicious  will,  is  no  crime  at  all.  So,  t'.iat  to 
constitute  a  crime  against  human  laws,  there  must  be,  first,  a 
vicious  will,  and,  secondly,  an  unlawful  act  consequent  upon  such 
vicious  will. 

cou'f'st  22  Now,  there  are  three  cases  in  which  the  will  does  not  join 
with  the  act.  1.  Where  there  is  a  defect  of  understanding.  For 
where  there  is  no  discernment  there  is  no  choice  ;  and  where 
there  is  no  choice,  there  can  be  no  act  of  the  will,  which  is  no- 
thing else  but  a  determination  of  one's  choice  to  do,  or  to  abstain 
from  a  particular  action  :  he,  therefore,  that  has  no  understanding, 
can  have  no  will  to  guide  his  conduct.  2.  Where  there  is  under- 
standing and  will  sufficient  residing  in  the  party,  but  not  called 
forth  and  exerted  at  the  time  of  the  action  done  ;  which  is  the  case 
of  ill  offences  committed  by  chance  or  ignorance.  Here  the  will 
sits  neuter;  and  neither  concurs  with  the  act,  nor  disagrees  to  it. 
3.  Where  the  action  is  constrained  by  some  outward  force  and 
violence.  Here  the  will  counteracts  the  deed,  and  is  so  far  from 
concurring  with,  that  it  loaths  and  disagrees  to  what  the  man  is 
obliged  to  perform.  » 

Of  these  three  cases,  the  first  only  is  connected  with  the  sub- 
ject of  this  title,  and  includes  infancy,  idiocy,  lunacy,  and  in- 
toxication. 

When  the  infancy  or  non-age  of  the  party  furnishes  an  excuse 
for  the  commission  of  a  crime;  or,  rather,  devests  an  act  of  its  cri- 
minality, is  considered  under  the  title  INFANT. 

4  Black.  That  case  of  a  deficiency  in  will,  the  discussion  of  which  parti- 

cularly belongs  to  this  head,  which  excuses  from  the  guilt  of 
crimes,  arises  from  a  defective  or  vitiated  understanding,  viz  in 
an  idiot  or  a  lunatic.  For  the  rule  of  law  as  to  the  latter,  which 
may  easily  be  adapted  also  to  the  former,  is,  that  furiosus  furore 
solum  punitur.  A  madman  is  punished  by  his  madness  alone.  la 
criminal  cases,  therefore,  idiots  and  lunatics  are  not  chargeable  for 
their  own  acts,  if  committed  when  under  these  incapacities:  no, 
not  even  for  treason  itself.  Also,  if  a  man  in  his  sound  memory 
commits  a  capital  offence,  and  before  arraignment  for  it,  he  be- 
comes mad,  he  ought  not  to  be  arraigned  for  it;  because  he  is  not 
able  to  plead  to  it  with  that  advice  and  caution  that  he  ought. 
And  if,  after  he  has  pleaded,  the  prisoner  becomes  mad.  he  shall 
not  be  tried:  for  how  can  he  make  his  defence?  If  after  he  be 
tried  and  found  guilty,  he  loses  his  senses  before  judgment,  judg- 
ment shall  not  be  pronounced  ;  and  if,  after  judgment,  he  becomes 
of  non-sane  memory,  execution  shall  be  staid:  for,  peradventure, 
f,;iys  the  humanity  of  the  English  law,  had  the  prisoner  been  of 
sound  memory,  he  might  have  alleged  something  invstay  of 
judgment  or  execution. 

*  r-lafi.-.  If  there  be  any  doubt  whether  the  party  be  compos  or  not,  this 

shall  be  tried  by  a  jury.     And  if  he  be  so  found,  a  total  idiocy,  01 

* 


LUNATICS.  307 

absolute  insanity,  excuses  from  the  guilt,  and  of  course  from  the 
punishment  of  any  criminal  action  committed  under  such  depri- 
vation of  the  senses  :  but  if  a  lunatic  haf.li  lurid  intervals  of  under- 
standing, he  shall  answer  for  what  he  does  in  those  intervals,  as  if 
he  had  no  deficiency. 

As  to  actiticiai,  voluntarily  contracted  madness,  by  drunkenness  4  Black. 
er  intoxication,  which,  depriving  men  of  their  reason,  puts  them  Com-25>26- 
in  a  temporary  frenzy,  our  law  looks  upon  this  as  an  aggravation 
of  the  offence,  rather  than  as.  an  excise  for  any  criminal  misbe- 
haviour.    A  drunkard,  says  sir  Edward  Coke,  who  is  voluntarius  Co.  Lit.  247, 
daemon,  hath  no  privilege  thereby  ;  but  what  hurt  or  ill  soever  he  *' 
doth,  his  drunkenness  doth  aggravate  it. 

Yet,  if  by  the  continued  practice  of  drunkenness,  an  habitual  or  i  Hale,  P.  c. 
fixed  phrenzy  be  caused,  though  this  madness  was  contracted- by  32' 
the  vice  and  will  of  the  party,  yet  this  habitual  and  fixed  phrenzy 
thereby  caused,  puts  the  man  into  the  same  condition,  in  relation 
to  crimes,  as  if  the  same  were  contracted  involuntarily  at  first. 

If  one  who  wants  discretion,  commit  a  trespass  against  the  per-  i  Hawk.  P. 
son  or  possession  of  Another,  he  shall  be  compelled  in  a  civil  ac-  c>  c-1-*-*' 
tion  to  give  satisfaction  for  the  damage. 

He  who  incites  a  madman  to  do  a  murder  or  other  crime,  is  a  iHa*k.  p. 
principal  offender,  and  as  much  punishable  as  if  he  had  done  it  c-c-1>'>7- 
himself. 

By  the  act,  sess.  24.  c.  30.  s.  1.  "The  chancellor  shall  have  the 
care,  and  provide  for  the  safe  keeping  of  all. idiots  and  lunatics, 
and  of  their  real  and  personal  estates,  and  for  their  maintenance, 
and  also  for  the  maintenance  of  the  families  of  such  lunatics,  and  , 
the  education  of  their  children,  out  of  the  personal  estate  of  such 
idiots  and  lunatics,  and  the  rents  and  profits  of  their  real  estates 
respectively,  having  regard  to  the  amount  and  value  of  the  same, 
and  shall  take  care  that  the  same  be  not  wasted  or  destroyed." 

When  an  idiot  doth  sue  or  defend,  he  shall  not  appear  by  guar-  3  Bac.  AUr. 
dian,  prochein  amy,  or  attorney,  but  he  must  be  ever  in  proper  per-  co.  Lit.  rss, 
son.     But  otherwise  of  him  who  becomes  non  compos  mentis ;  for  b< 
he  shall  appear  by  guardian,  if  within  age,  or  by  attorney,  if  of 
full  age. 

Idiots,  lunatics,  and  madmen  are  not  competent  witnesses,  and  10  Johns, 
if  offered,  testimony  may  be  adduced  to  show  their  incompetcncy.     e*' 

By  the  act,  st-ss.  1  1.  c.  31.  s.  6.  two  justices,  by  warrant  under 
their  hands  and  seals,  may  order  lunatics,  who  are  dangerous,  to 
be  permitted  to  go  abroad,  to  be  apprehended  and  confined:  as 
*.o  which,  see  DISORDER!^  PERSONS,  ante,  p.  90. 


308  MAINTENANCE. 


MAINTENANCE. 

I.  Of  maintenance  in  general. 

II.  Champerty. 

III.  Embracery. 

IV.  Barrttry. 

V.  Malicious  prosecution. 

I.  O/"  maintenance  in  general. 

b°3ii9 "'*"'*'       Maintenance  is  an  offence  both  at  common  law  and  by  statute. 
i  Hawk.  c.      and  in  general,  signifies  an  unlawful  taking  in  hand  or  upholding  of 
43Hac!  Abr'     quarrelsj  to  the  disturbance  or  hindrance  of  common  right. 
*8*r  Maintenance  is  twofold,  technically  called  ruralis  and  curialis 

1.  Ruralis,  or   in  the  country;  as  where  one  assists  another  in 
his  pretensions  to   certain  lands,  by  taking  or  holding  the  posses- 
sion of  them  for  him  by  force  or  subtlety  >or  where  one  stirs  up 
quarrels  and  suits  in  the  country,  in  relation  to  matters  wherein 
he  is  no  way  concerned  ;  which  is  punishable  by  fine  and  impri- 
sonment, whether  the  matter  in  dispute   any  way  depended  in 
plea  or  not ;  but  it  is  said  not  to  be  actionable. 

2.  Curialis,  or  in  a  court  of  justice  ;  where  one  officiously  in- 
termeddles in  a  suit  depending  in  any  such  court,  which  no  ways 
belongs  to  him, -by  assisting  cither  party  with  money,  or  otherwise, 
in  the  prosecution  or  defence  of  any  such  suit. 

Of  this  second  kind  of  maintenance  there  are  three  species: 
1st.  Where  one  maintains  another,  without  any  contract  to  have 
part  of  the  thing  in  suit;  which  generally  goes  under  the  com- 
mon n;ime  of  maintenance.  2dly.  Where  one  maintains  one 
bide,  to  have  part  of  the  thing  in  suit,  which  is  called  cham- 
perty. 3d.  Where  one  labours  a  jury,  which  is  called  embracery. 

The  following  are  the  provisions  of  the  statute,  sess.  24-.  c.  87. 
with  respect  to  maintenance.  1  11.  L.  172. 

"No  person,  by  himself  or  any  other,  shrill  take  upon  him  to 
maintain  quarrels  of  others,  to  the  let  and  disturbance  of  law,  upon 
pain  of  being  punished  by  fine  or  imprisonment,  and  to  lose  his 
-  office,  if  he  be  an  officer."  s.  5. 

"  All  gifts  and  conveyances  made  for  maintenance  shall  be 
void."  s.  7. 

"No  person  shall  hereafter  unlawfully  maintain,  or  cause  or 
procure  any  unlawful  maintenance  in  any  matter  or  cause  what- 
soever, in  suit  and  variance,  concerning  any  lands,  tenements,  or 
hereditaments,  or  any  goods,  chattel^,  debts,  damages,  or  offences, 
in  any  court  in  this  state,  or  before  any  person  who  shall  ha\  u  au- 
thority to  h«*.r  or  determine  the  same,"  under  the  penalty  for 
every  sn<-h  offence  of  2.00  dollars,  the  one  moiety  to  the  state, 
and  the  oilier  moiety  to  the  prosecutor,  s.  9. 


MAINTENANCE,  509 

Where  the  party  has  any  interest,  rither  legal  or  equitable,  in  J^£}|fm  v* 
the  subject  matter  of  the  suit,  he  cannot  be  made  liabU'  for  main-   8  Johus.kep. 
t.enance.      To  constitute  maintenance  there   must  be  an   officious  220' 
intermeddling  in  the  prosecuting  of  another's  right,  the  person  as- 
sisting having  no  privity  or  concern  in  the  subject. 

The  act  expressly  except^  the  taking  counsel  from  persons  duly  s.  i. 
licensed  for  that  purpose,  or  from  parents  and  next  friends  ;  hence 
it  is  not  penal  to  employ  a  counsellor  or  attorney  to  prosecute  a 
suit,  or  to  receive  the  assistance  of  a  parent  or  guardian  ;  but  it  has   i  Hawk.  c. 
been  held  an  offence  to  give  money  for  that  purpose.     To  give   83-8- 20-  26» 
money  to  a  poor  man  to  enable  him  to  carry  on  his  suit,  is  said  to  id.'s.24. 
be  lawful. 

The  decisions  on  the  subject  of  maintenance  are  principally  of 
an  ancient  date,  and -partake  of  a  degree  of  strictness  and  severity 
which  would  insure  them  but  little  countenance  from  the  more 
liberal  opinions  of  modern  times.  '"It  is  curious,"  says  Mr.  J.  4TermRep. 
Duller,  "  to  see  how  the  doctrine  of  maintenance  has  been  from  340. 
time  to  time  received  in  Westminster  hall.  At  t>ne  time  not  only 
lie  who  laid  out  money  to  assist  another  in  his  cause,  but  he  that 
by  his  friendship  or  interest,  saved  him  an  expense  which  he 
would  otherwise  be  put  to,  was  held  guilty  of  maintenance.  Nay, 
if  he  officiously  gave  evidence,  it  was  maintenance  ;  so  that  he 
itmst  have  had  a  subpoena,  or  suppress  the  truth.  That  such  doc- 
trine,  repugnant  to  every  honest  feeling  of  the  human  heart, 
should  be  soon  laid  aside,  must  be  expected.  Accordingly,  ava- 
I'iety  of  exceptions  were  soon  made  ;  and  amongst  others,  it  was 
held,  that  if  a  person  has  any  interest  in  the  thing  in  dispute, 
though  on  contingency  only,  he  may  lawfully  maintain  an  action 
on  it." 

II.  Champerty. 

By  the  act  to  prevent  and  punish  champerty  and  maintenance, 
before  referred  to,  s.  1 .  it  is  provided,  "That  no  officer  or  other 
person  shall  take  upon  him  any  business  that  is  or  may  be  iu  suit 
in  any  court,  for  to  have  part  of  the  thing  in  plea  or  demand  ;  and 
no  person  upon  any  such  agreement  shall  give  up  his  right  to 
another,  and  every  such  conveyance  and  agreement  shall  be  void. 
And  every  person  who  shall  maintain  any  plea  or  suit  in  any  court 
for  lands,  tenements,  or  other  things,  for  to  have  part  or  profit 
thereof,  shall  be  punished  by  fine  or  imprisonment;  but  this  act 
shall  not  prohibit  any  person  to  have  counsel  of  persons  duly  li- 
censed for  that  purpose,  or  to  take  counsel  of  his  parents  and  next 
friends.1' 

By  s.  -2.  "No  officer,  judicial  or  ministerial,  shall  take  or  re- 
ccivt;  any  lands  or  tenements  in  fee,  by  gift  or  by  purchase,  or  to 
farm,  or  by  champotry,  or  otherwise,  so  long  as  I  he  thing  is  in 
plea  in  any  court,  nor  shall  take  any  reward  thereof;  and  he  who 
doth  the  contrary,  either  by  himself  or  by  any  other,  or  makes 


MAINTENANCE. 

pny  bargain  concerning  the  same,  shall  be  punished  by  fine  or 
imprisonment,  as  well  he  that  purchaseth,  as  he  that  shall  sell 
the  same." 

Sec.  3.  declares,  "  That  all  persons  who  move  pleas  and  suits, 

or  cause  them  to  be  moved,  either  by  their  own  procurement,  or 

by  others,  and  sue  them  at  their  own  proper  costs,  for  to  have 

part  of  the  land  or  thing  in  controversy  or  demand,  or  part  of  the 

1  gains,  shall  be  adjudged  chauipertors." 

iHawk.  c.  The  established  doctrine  under  this  statute  is,  that  a  purchase, 
«  Johns.  Rep.  or  ev*->n  a  gift  of  the  land,  while  a  suit  is  pending  concerning 
47"-  it,  if  it  be  made  with  knowledge  of  the  suit,  and  be  not  the  con- 

summation of  a  previous  bargain,  nor  founded  on  the  ties  of  blood, 
is  within  the  purview  of  the  statute. 

The  offence  of  buying  or  selling  a  pretended  title,  can  hardly 
be  considered  as  coming  within  the  scope  of  this  compilation, 
since  it  does  not  afford  a  ground  for  a  criminal  prosecution. 

III.  Embracery. 

By  the  9th  sect,  of  the  same  statute,  it  is  enacted,  that  "  ns 
person  shall  unlawfully  retain  for  maintenance  of  any  suit  or  plea, 
any  person,  or  embrace  any  freeholders,  or  jurors,  by  rewards, 
promises,  or  other  sinister  labour  or  means,  to  maintain  any  mat- 
ter or  cause,  or  to  the  hindrance  or  disturbance  of  justice,  or  to 
the  procurement  or  occasion  of  any  false  verdict,  in  any  court 
within  this  state,"  under  a  penalty  of  250  dollars,  the  one  moiety 
to  the  people  of  the  state,  and  the  other  moiety  to  the  prosecutor. 

IV.  Barretry. 

4 Black.  Analogous  to  the  offences  just  mentioned,  is  that  of  common 

barretry,  which  is  defined  to  be  the  offence  of  frequently  exciting 
and  stirring  up  quarrels,  either  at  law  or  otherwise.  The  pu- 
nishment for  this  offence,  in  a  common  person,  is  by  fine  and  im- 
prisonment:  but  if  the  offender  belongs  to  the  profession  of  the 
law,  a  barrister,  who  is  thus  able,  as  well  as  willing  to  do  mischief, 
ought  also  to  be  disabled  from  prosecuting  for  the  future.  With 
respect  to  attorneys,  it  is  enacted,  (sess.  36.  c.  48.  s.  7.)  "that 
if  any  attorney  of  the  supreme  court,  or  of  any  court  of  com- 
mon picas,  shall  purchase  or  receive  by  .way  of  pledge  or  securi- 
ty for  money  lent,  any  bond,  note,  or  other  writing,  with  intent 
to  commence  a  suit  thereon,  and  shall  commence  such  suit  ac- 
cordingly, every  such  attorney  shall  be  deemed  guilty  of  a  mis- 
demca"our." 

swrns.  it  js  ],e]d  essential  to  the  validity  of  an  indictment  for  this  of- 

n.  i  and   '      fenpe,  that  it  should  charge  the  defendant  with  being  a  common 

cUed.tber8      barn-tor  ;  but  it  is  unnecessary  to  show  any  particular  facts,  nor 

need  there  bi>.  nny  venue  laid  for  the  plac-e  whore  committed  ;  yet 

it  is  clearly  settled  that  the  prosecutor  must  give  the  defendant, 


MANDAMUS.  $11 

before  the  trial,  H  note  of  the  particular  acts  of  barratry  which  he 
intends  to  prove  against  him  ;  and  if  he  do  not,  the  court  will  not 
suffer  the  prosecutor  to  proceed  in  the  trial  of  the  indictment;  for 
otherwise  it  will  be  impossible  for  him  to  prepare  for  his  defence. 

V.  Malicious  prosecution. 

By  the  act  to  prevent  maintenance,  (sess.  24.  c.  87.  s.  6,)  an  ac- 
tion on  the  case,  in  which  the  plaintiff  shall  recover  treble  dama- 
ges, is  given  to  every  person  who  shall  be  maliciously  indicted  for 
treason,  felony,  or  trespass,  out  of  the  county  in  which  he  dwells, 
against  the  procurer  of  such  indictment. 

By  the  10th  section  of  the  same  act,  if  any  person  shall,  by 
any  ways  or  means,  maliciously,  or  for  vexation  and  trouble,  pro- 
cure another  to  be  arrested  or  attached  to  answer  in  any  court  at 
the  suit  or  in  the  name  of  any  person,  where  there  is  nt>  such  per- 
son known,  or  without  the  consent  or  agreement  of  such  person, 
he  shall  forfeit  to  the  party  arrested  or  attached,  treble  the  costs, 
damages,  and  expenses,  that  the  party  shall  be  put  to ;  to  be  re- 
covered by  action  of  debt,  or  by  information  in  any  court  of  re- 
cord, with  costs  of  suit ;  "  and  shall  also  forfeit  and  pay  unto  the 
person  in  whose  name,  and  at  whose  suit  such  arrest  or  attach- 
ment was  had,  if  any  such  person  be  known,  50  dollars  for  every 
such  offen.ce,  to  be  recovered  as  aforesaid,  and  shall  also,  upon 
conviction  theVeof,  be  imprisoned  for  a  time  not  exceeding  six 
calendar  months." 

But  an  action  for  a  malicious  prosecution  will  not  lie  before  a 
justice  of  the  peace.  Sess.  30.  c.  53.  s.  1. 


MANDAMUS. 

A  mandamus  is  a  writ  issuing  from  the  supreme  court,  directed  s  Black. 
to  any  person,  corporation,  or  inferior  court  of  judicature,  requi- 
ring them  to  do  some  particular  thing,  therein  specified,  which 
appertains  to  their  office  and  duty.  It  is  a  high  prerogative  writ, 
of  a  most  extensively  remedial  nature  ;  and  may  be  issued  in  some 
cases  where  the  injured  party  has  also  another  more  tedious 
method  of  redress,  as  in  the  case  of  admission  or  restitution  to  an 
office:  but  it  issues  in  all  cases  where  the  party  hath  a  right  to 
have  any  thing  done,  and  hath  no  other  specific  means  of  compel- 
ling its  performance. 

It  issues  to  the  judges  of  any  inferior  court,  commanding  them   sBiacfc. 
to  do  justice,  according  to  the  powers  of  their  office,  whenever 
the  same  is  delayed ;  as,  to  the  sessions,  to  compel  them  to  give   1  Johns.  Cas. 
judgment. 

This  writ  is  grounded  on  a  suggestioft,  by  the  oath  of  (he  party  ••*  Bb<*. 
ftljured,  of  his  own  right,  and  of  the  denial  of  justice  in  the  court 


312  MILITIA. 

below :  whereupon  more  fully  to  satisfy  the  court  that  there  is  a 
probable  ground  for  such  interposition,  a  rule  is  made  (except  in 
some  general  cases  where  the  probable  ground  is  manifest)  direct- 
ing the  party  complained  of,  to  show  cause  why  a  \\iit  of  manda- 
mus should  not  issue  :  and  if  he  shows  no  sufficient  cause,  the  writ 
itself  is  issued,  at  first  in  the  alternative  ;  either  to  do  thus  or  sig- 
nify some  reason  to  the  contrary  ;  to  which  he  is  required  by 
statute  (sess.  II.  c.  11.  s.  J.)  to  make  a  return.  And  if  he  re- 
turns an  insufficient  reason,  then  there  issues  in  the  second  place 
a  peremptory  mandamus,  to  do  the  thing  absolutely  ;  to  which  no 
other  return  will  be  admitted,  but-a  certificate  of  perfect  obedience 
and  due  execution  of  the  writ.  If  the  inferior  judge  or  other  per- 
son makes  no  return,  or  fails  in  his  respect  and  obedience,  he  is 
punishable  for  his  contempt  by  attachment. 

The  relator,  or  person  prosecuting  the  mandamus,  may  tra- 
verse the  return,  and  issue  being  joined,  proceed  to  trial,  and  in 
case  of  verdict  or  judgment  by  demurrer,  or  otherwise,  in  his  fa- 
vour, shall  have  damages  and  costs,  and  a  peremptory  mandamus. 
Sess.  11.  c.  11.  s.  '2. 


MILITARY  STORES. 

2«..  L.  550.  "  If  any  person  or  persons  shall  spike  any  cannon,  or  wilfully 
injure,  damage,  spoil,  or  embezzle  any  of  the  arms,  ammunition, 
or  other  military  stores,  belonging  to  this  state,  such  person  or 
persons  shall  be  deemed  guilty  of  a  high  misdemeanour,  and  shall, 
upon  conviction  thereof  in  any  court  having  cognizance  thereof 
be  fined,  not  exceeding  two  thousand  dollars,  or  imprisoned  in 
the  state  prison  at  hard  labour,  not  exceeding  seven  years,  at  the 
discretion  of  the  court."  Sess.  35.  c.  139.  s.  12. 


MILITIA. 

By  the  act  of  Congress,  May  8,  1792.  s.  1.  Every  citizen  en- 
rolled in  the  militia,  and  providing  himself  with  the  arms,  ammu- 
nition, and  accoutrements  required  by  that  law,  shall  hold  the 
same  exempted  from  all  suits,  distresses,  executions,  or  sales  for 
debt,  or  for  the  payment  of  taxes. 

By  the  militia  act  of  this  state,  sess.  32.  c.  1Q5.  s.  19.  The 
horses  of  troopers  which  have  been  enrolled,  and  are  doing  duty 
in  any  troop,  are  exempted  from  all  attachments,  sriz/ires,  dis- 
tresses, executions,  or  sales  for  debt,  or  for  the  payment  of  taxes  ; 
hut  such  horse  shall  not  be  exempted  from  attachment  until  j-wh 
trooper  shall -have  the  equipments  required  by  the  laws  of  the 
United  States. 


MILITIA.  313 

Quakers  arc  exempted  from  military  service,  orr  paying  annu- 
ally the  sum  of  four  dollars  each  ;  "  anil  it  is  hereby  made  the  du-  , 
ty  of  every  captain  of  infantry,  within  three  months  after  he  shall 
have  received  his  commission,  and  yearly  thereafter,  or  of  the 
commanding  officer  of  such  company  of  infantry  for  the  time  be- 
ing, on  the  last  Tuesday  in  May,  to  make  a  list  of  the  names  of 
all  persons  within  his  beat,  being  of  the  people  called  quakers, 
subject  to  military  duty  as  aforesaid,  and  who  shall  neglect  or  re- 
fuse personally  to  perform  the  same,  and  deliver  such  list,  signed 
by  him,  to  one  of  the  assessors  of  the  town  or  Avard  where 
such  persons  so  neglecting  or  refusing  to  perform  such  mili- 
tary service  shall  respectively  reside  ;"  which  list  shall  be  deli- 
vr.-i 'I  by  the  assessors  to  the  board  of  supervisors  of  the  county, 
who  shall  direct  the  same  to  be  levied  by  the  collector  of  the 
town  or  ward,  and'the  money  when  received,  either  on  demand, 
or  by  being  levied  by  distress,  and  paid  into  the  treasury  of  this 
state,  shall  become  a  part  of  the  common  school  fund;  "and  the 
aforesaid  captains  and  commanding  officers,on  failure  of>their  duties 
as  aforesaid,  shall  respectively  be  subject  and  liable  to  a  penalty  of 
twenty-five  dollars,  to  be  sued  for  and  recovered,  with  costs,  by 
and  in  the  name  of  the  adjutant,  or  pe'fson  acting  as  such,  of  the 
regiment  to  which  such  captain  or  commanding  officer  making 
default  belongs,  before  any  court  having  cognizance  thereof; 
which  penalty,  when  collected,  shall  be  paid  to  the  commandant 
of  the  regiment,  to  be  applied  by  him  in  the  same  manner  as  the 
other  monies  mentioned  in  this  section  are  directed  to  be  ap-  , 
plied."  s.  14. 

','  Every  commissioned  officer  hereafter  to  be  appointed,  shall, 
•within  thirty  days  after  he  receives  notice  o.f  his  appointment,  re- 
port his  acceptance  or  non-acceptance  to  the  commandant  of  his 
regiment,  or  be  liable  to. pay  a  fine  of  fifteen  dollars,  to  be  reco- 
vered before  any  court  having  cognizance  thereof,  in  the  name  of 
the  adjutant  of  the  regiment  to  which  he  belongs;  which,  when 
recovered,  shall  be  paid  to  the  commandant  of  the  regiment,  to 
be  by  him  laid  out  and  accounted  for  in  like  manner  as  other 
fines  for  delinquencies  in  his  regiment."  s.  36. 

"  No  person  shall  be  permitted  to'  sell  or  expose  for  sale  on 
any  parade,  the  bounds  of  which  shall  be  determined  by  the  com- 
manding officer  present,  at  any  such  parade,  any  spirituous  liquors 
whatsoever ;  and  if  any  person  shall  expose  for  sale  any  spirituous 
liquors,  contrary  to  this  act,  and  be  thereof  convicted  before  any 
court  having  cognizance  thereof,  he  shaH  forfeit  the  sum  of  twen- 
ty-five dollars,  the  one  moiety  thereof  to  the  person  prosecuting 
for  the  same,  and  the  other  moiety  to  be  paid  and  applied  ,as  fines 
foi  delinquencies  in  the  regiment,  on  whose  parade  such  liquor  was 
exposed  to  sale  as  aforesaid,  are  by  this  act  'directed  to  be  ap- 
plied." s.  63. 

"  It  shall  be  the  duty  of  the  president  of  each  and  every  courf- 
martial,  (i.  e.  a  regimental  court-martial,)  within  ten  days  after 

4O 


.Jl  1  MILITIA. 

the  delinquents  returned  to  him.  to  report  the  proceedings  of 
such  court  martial  to  t!ie  officer  ordering  the  same,  and  within 
sixty  days  thereafter,  make  a  retur.i  of  -«|!  :r),>m-*  ••nl!f  rt« 
pVid  over  to  him,  after  deducting  the  expenses  of -such  court-mar- 
tial, on  pain  of  forfeiting  twenty-five  dollars,  to  be  recovered  hy 
the  adjutant  of  the  regiment,  on  the  di-vcti  <u  of  the  comaja-id- 
ant,  in  any  court  having  cognizance  thereof."  s.  7d. 

"  In  case  any  brigade  inspector  shall  wilfully  neglect  or  omit 
to  perform  the  duties  required  of  him  by  law,  he  shall  for  evf  ry 
such  offence  forfeit  and  pay  twenty-five  dollars,  to  be  reco-.  • 
•    in  the  like  manner  as  the  other  penalties  are  by  this  act  reco- 
veraHe."  s.  51. 

"Every  non-commissioned  officer  who  shall  neglect  or  refuse 
to  warn  the  men  to  appear  at  any  rendezvous  mentioned  i 
act,  when  thereunto  required  by  his  captain  or  commanding  offi- 
cer, without  sufficient  excuse,  shall  pay  a  fine  not  exceeding  fif- 
teen dollars,  for  every  such  neglect  or  refusal."  s.  .53. 

"  It  shall  not  be  lawful  for  any  non-commissioned  officer  or  nri- 
vate  to  discharge  any  fire-arms  within  two  miles  of  the  place  of 
parade,  on  any  day  that  they  shall  be  ordered  out  for  improve- 
ment or  inspection,  without  an  order  or  permission  of  a  commis- 
sioned officer;  and  if  any  such  non-commissioned  officer  or  pri- 
vate shall  so  discharge  any  fire-arms  wilho  ->t  such  order  or  p°r- 
missiop,  he  shall  forfeit  the  sum  of  one  dollar  for  • 
offence."  s.  61. 

';  All  fines,  penalties  and  forfeitures  created  by  this  act,  (un- 
less otherwise  directed)  shall,  in  case  the  same  should  be 
red  bv  any  commissioned  officer  below  the  rank  of  captain,  or  by 
any  non-commissioned  officer  or  private,  or  other  person.  b> 
for  and  recovered,  with  costs  of  suit,  by  and  in  the  name 
adjutant  or  pay-master,  or  person  acting  as  such,  of  the  r«"_ 

nich  such  offender  belongs,  in  any  court  having  cognisance 
thereof;  and  in  case  the  same  shall  be'incurred  by  any  c- 
sioned  officer  above  or  of  rank  of  captain,  then  th«  same  shuM  be 
sued  for  and  recovered,  with  costs  of  suit,  brand  in  the  name  of 
the  brigade  inspector,  or  person  acting  as  stich,  or  in  the  tir. 
the  quarter-maf-ter  of  the  brigade  to  which  such  eommMSioned 
officer  offending  belongs,  in  any  court  having  cognisance  there- 
of." s.  95. 

"It  shall  aud  may  be  lawful  for  each  of  the  commandants  of 
the  several  regiments  of  militia  in- this  state  to  form  and  organize 
a  band  of  musicians  « it;>in  and  for  his  said  regiment  — —  and  trie 
persons  be.loogios  to  such  baad  of  musicians  shall  be  er.rmpt-  d 
from  serving  as  jurors,  during  the  time  they  continue  in  su-.-h. 
band."  - 

u  Every  captain  or  commandant  of  a  company,  may  enroll  it 
least  two,  and  not  more  than   four  persons  residing;  in  hi- 
tvho  are  desirous  and  willing  to  be  enr  »llijd  in  sue!'  "-impai'y  as 
musicians    and  shall  respectively   be  exempted  from  aU 


MISDEMEANOUR.  315 

taxes,  and  serving  as  jurors  during  the  time  they  continue  to  act 
as  musicians  for  such  company."  s.  43. 

"In  cases  of  insurrection,  the  commanding  officer  of  the  regi- 
ment vilhin  the  limits  of  -which  any  such  insurrection  may 
happen,  shall  immediately  assemble  his  regiment  under  arms,  and 
having  transmitted  information  thereof  to  the  commanding  officer 
•  I  the  brigade,  and  to  the  commander  in  chief  of  this  stole,  shall 
proceed  to  take  such  measures  to  suppress  such  insurrection,  as 
to  any  three  of  the  judges  or  justices  of  the  county,  in  which 
such  insurrection  shall  happen,  shall  appear  most  proper  and  ef- 
fectual :  Provided  always.  That  if  any  such  judges  or  justices  shall 
deem  a,  greater  number  of  militia  requisite  to  quell  such  insur- 
rection, they  shall,  and  are  hereby  required  to  apply  for  the  same 
to  the  commanding  officer  of  ihe  division,  or  any  brigade  thereof, 
who  are  hereby  severally  required  to  obey  such  requisition."  s.  70. 

The  following  oath  is  required  to  be  taken  by  the  president  of 
every  regimental  court-martial,  before  he  enters  upon  the  duties 
of  his  office  : 

"  You, ,  do  swear,  that  you  will  well  and  truly  try  and  de- 
termine, according  to  evidence,  the.  matter  now  depending  be- 
tween the  people  of  the  State  of  New  York  and  the  person  or  per- 
sons to  be  tried  ;  and  you  do  further  swear,  that  you  will  not,  upon 
any  account,  at  any  time  whatsoever,  disclose  or  discover  the 
vote  or  opinion  of  any  particular  member  of  the  said  court,  unless 
required  to  give  evidence  thereof  by  a  court  of  justice,  in  a  due 
course  of  law  :" 

"  For  which  purpose  he  shall  appear  fiefore  one  of  the  justices 
of  the  peace  of  the  said  county  w  here  he.  resides,  which  justice 
is  hereby  required  to  administer  the  aforesaid  oath  to  such  presi- 
dent, without  receiving  any  fee  or  reward  for  the  same."  -s.  78. 


MISDEMEANOUR. 

This  word,  in  its  usual  acceptation,  is  applied  to  all  those  crimes  s  Bums' 
and  offences  for  which  the  law  has  not  provided  a  particular  name  ; 
and  they  may  be  punished  according  to  the  degrees  of  the  of- 
fence, by  fine  or  imprisonment,  or  both.  This  is  the  case  with 
respect  to  acts  of  omission  or  commission,  which  were  punish- 
able at  common  law  ;N  bat  many  offences  are,  by  the  statute  law, 
punishable  as  misdeameanours  specifically- 

Misdemeanour  is  generally  used  in  contradistinction  to  felony,  £Biack. 
and  misdemeanours  comprehend  all  indictable  offences^vhich  do 
not  amount  to  felon      as  perjury,  battery,  libels,  conspiracies,  at- 
tempts, and  solicitations  to  commit  felouies,  Sec. 


316 


NUISANCE. 


4  Black. 
Com.  166, 
167. 


Co.  Lit.  56.  a. 


1  hawk.  P.C. 

C.  75.5.6. 


1  Hiwk.  F.C. 

e.  75.  s.  7. 


1  Ha-.Tk.  P.C. 
c.  75.  s.  11 
5  Eac.  Abr. 

Vuisance;.  in 
ob»tr<Ji-ting 

WtilV. 
Vi<lr  Hi'-h- 

rvays,  IX. 

1  Hawk.  P.C. 

C.  75.  s.  10. 


NUISANCE. 

I.    JfTint  U  is. 

II.   How  it  in  fry  be  remwed. 
III.   Hoir  punished. 

I.    What  it  is. 

Common  nuisances  are  a  species  of  offences,  against  the  public 
order  and  economical  regimen  of  the  state ;  being  either  the  do- 
ing: of  a  thing  to  the  annoyance  of  all  persons,  or  the  neglecting 
to  do  a  tiling  which  the  common  good  requires.  They  are  such, 
inconvenient  or  troublesome  offences,  as  annoy  the  whole  com- 
munity in  general,  and  not  merely  some  particular  person  ;  and 
therefore  are  indictable  only,  and  not  actionable;  as  it  would  be 
unreasonable  to  multiply  suits,  by  giving  every  man  a  separate 
right  of  action,  for  what  damnifies  him  in  common  only  with  the 
rest  of  his  fellow-citizens. 

Yet,  if  irtiy  person  receive  a  special  damage,  as  if  a  ditch  be 
dug  across  a  highway,  (which  is  a  public  nuisance)  whereby  he 
and  his  horse  fall  into  the  ditch  and  receive  an  injury,  for  this 
special  damage,  which  is  not  common  to  others,  he  may  have(  an 
action  on  the  case. 

There  is  no  doubt  but  that  common  bawdy  houses  are  indicta- 
ble as  common  nuisances;  also,  it  hath  been  said,  ttet  all  com- 
mon stages  for  rope-dancers,  and  ajso  all  common  gaming  houses, 
are  nuisances  in  the  eye  of  the  law  ;  not  only  because  they  are 
great  temptations  to  idleness,  but  also,  because  they  are  apt  to 
draw  together  great  numbers  of  disorderly  persons,  which  cannot 
but  be  very  inconvenient  to  the  neighbourhood. 

Also,  it  hath  been  holden  that  a  common  play-house  may  be  a 
nuisance,  if  it  draw  together  such  numbers  of  coaches  or  people, 
Sec.  as  prove  generally  inconvenient  to  the  places  adjacent ;  and  it- 
seems  to  be  a  proper  distinction  between  play-houses  and  the 
nuisances  mentioned  above,  that  play-houses  having  been  origi- 
nally instituted  with  a  laudable  design  of  recommending  virtue  to 
the  imitation  of-  the  people,  and  exposing  vice  and  folly,  are  not 
nuisances  in  their  own  nature,  but  may  only  become  such  by  ac- 
cident, whereas  the  others  cannot  but  be  nuisances. 

As  navigable  rivers  are  deemed  highways,  it  is  a  nuisance  to 
divert  part  of  the  river,  whereby  the  curmit  of  it  is  weakened, 
and  made  unable  to  carry  vessels  of  the  same  burden  that  it  could 
before.  Also,  the  laying  of  timber  in  a  common  river,  though  the 
soil  belong  to  the  party,  is  equally  a  nuisance,  as  if  the  soil  was 
not  his,  if  thereby  the  passage  of  boats,  8cc.  is  obstructed. 

It  hath  been  holden  that  it  is  no  common  nuisance  to  make 
candles  in  a  town,  because  the  needfulness  of  them  shall  dispense 
•with  the  r.  he  smell;  but  the  reasonableness  oi 


NUISANCE.  317 

opinion  seems  justly  (o  be  qu  stionahle,  bncause  whatever  neces- 
sity there  may  be  that  candles  he  made,  it  eannot  be  pretended 
to  be  necessary  to  make  them  in  a  town  ;  and  surely  the  trade  of 
a  brewer  is  as  necessary  as  that  of  a  chandler;  and  yet  it  seems 
to  be  agreed  that  a  brew-house,  erected  in  such  an. inconvenient 
place,  wherein  the  business  cannot  be  carried  on  without  greatly 
incommoding  the  neighbourhood,  may  be  indicted  as  a  common 
nuisance,  and  so  in  like  case  may  a  glass-house  or  a  swine-yard. 

Two  persons  were  indicted  for  making  great  quantities  ot  noi-   K.v.  white 
some,  offensive,  and  stinking  liquors,  called  acid  spirits  of  sulphur,   iBurr.aWJ 
oil  of  vitriol,  and  oil  of  aquafortis:  whereby  the  air  was  impreg- 
nated with  noisome  and  offensive  smells:  and  it  was  held  by  the 
court  to  be  a  nuisance.     The  word  noisome  means  not  only  dis- 
agreeable, but  hurtful.      And  it  is  not  necessary  to  constitute  the 
offence,  that  the  smell  shbuld  be  unwholesome  ;  it  is  enough  if  it 
renders  the  enjoyment  of  life  and  property  uncomfortable. 

But  where  manufactories  have  been  borr.e  with  in  a  neighbour-  Peake,9». 
hood  for  many  years,  it  will  operate  as  a  consent  of  the  inhabi- 
tants to  their  being  carried  on,  though  the  law  might  have  con- 
sidered them  as  nuisances,  had  they  been  objected  to  in  time  ; 
but  if  another  man  comes,  and  by  his  manufacture,  renders  that 
which  was  a  little  unpleasant  before,  very  disagreeable  and  un- 
comfortable, though  it  would  not  amount  to  a  nuisance  by  itself, 
still  he  is  answerable  for  it. 

A  person  was  indicted  for  making  great  noises  in  Ihe  night  with  2  str.  ro-i, 
a  speaking  trumpet,  to  the  disturbance  of  the  neighbourhood,  and 
it  was  held  to  be  H  nuisance. 

Keeping  gun-powder  near  dwelling  houses,  and  near  a  public  The  People 
street,  or  transporting  it  through  a  pubUc  street,  are  not  nuisances,  j'johns?1 
unless  rendered  so  by  particular  circumstances,  such  as  negligent  Rep-78. 
keeping,  fcc. 

The  keeper  of  an  inn  may.  hy  the  common  law,  be  indicted  and  c^^.s^t 
fined,  as  being  guilty  of  a  public  nuisance,  if  he  usually  harbour  2. 
Ihieves,   or  persons  of  scandalous  reputation,  or  suffer   frequent  Tmerns, 
disorders  in  his    house,  or  take  exorbitant  prices  :   so,  too,  if  he  a»te>  p-J96- 
refuse,  to  receive  a  traveller  or  guest,  he  may  be  indicted  and 
fined. 

II.  How  it  may  be  removed. 

A  nuisance  may  be  abated,  that  is,  taken  away  or  removed,  by  conT^'e 
the  party  aggrieved  thereby,  so  as  he  commits  no  riot  in  the  do- 
ing of  it.     If  a  house  or  Avail  is  erected  so  near  to  mine,  that  it   . 
stops  my  ancient  lights,  which  is  a  private  nuisance,  1  may  enter 
my  neighbour's  land,  and  peaceably  pull  it  down.     Or  if  a  new  gate 
be  erected  across  the  public  highway,  which  is  a  common  nuisance, 
any   person  passing  that  way  may  cut  it  down   and  destroy  it. 
And  the  reason  why  the  law  allows  this  private  and  summary, 
method  of  doing  one's  self  justice,  i:s,  because  injuries  of  this  kind. 


jjy  OATHS. 

which  obstruct  or  annoy  such  things  as  ara  of  daily  conve- 
nience and  use,  require  fin  immediate  remedy;  and  cannot  wuit 
for  the  slow  progress  of  the  ordinary  forms  of  justice. 

III.  How  punished. 

e!^7s! H'  Whoever  is  convicted  of  a  nuisance  may  be  fined  and  imprison- 

**•  ed;  and  it  is  said,  that  one  convicted   of  a  nuisance  done  to   tlic 

highway,  may  be  commanded  by  the  judgment  to  remove  the 
nuisance  at  his  pwn  costs;  and  it. seems  to  be  reasonable,  that 
those  who  are  convicted  of  any  other  common  nuisance,  should 
also  have  the  like  judgment. 

ReptTi42.  ^  *ne  Party  w^°  has  been  indicted  for  a  nuisance  continue  the 

iLd.Raym.  same,  he  may  be  again  indicted  tor  such  continuance  of  he  nui- 
sance. So,  though  for  a  private  nuisance,  two  actions  for  the 
erection  -cannot  be  had,  yet  a  second  action  for  the  continuance 
thereof  may  be  sustained. 

OATHS. 

JR.L.  33z.  Bj,  t|ie  act  concerning  oaths,  sess.  26.  c.  13.  s.  I.  "  Every  per- 
son who  shall  hereafter  he  elected  a  member  of  the  senate  or  of 
the  assembly  of  this  state,  before  he  takes  his  seat,  and  every  per- 
son who  shall  hereafter  be  elected  governor,  or  lieutenant-gover- 
nor of  this  state,  and  every  person  who  shall  hereafter  be  appoint- 
ed to  any  office,  civil  or  military,  before  he  enters  upon  the  exe- 
cution of  his  trust  or  office,  shall  and  hereby  is  required,  to  take 
and  subscribe  the  following  oath,  that  is  to  say  :  7, ,  do  so- 
lemnly, without  any  mental  reservation  or  equivocation,  swear  and 
declare,  (or  affirm,  as  the  case  may  require,)  that  I  renounce  and  al>- 
jure  all  allegiance  and  fidelity  to  every  foreign  prince,  potentate,, 
state,  or  sovereignty  whatever,  and  that  I  will  bear  faith  and  true  al- 
legiance to  the  stale  of  New-York,  as  a  free  and  independent  state?' 
Sect.  2  prescribes  the  oath  of  governor,  lieutenant-governor, 
and  president  of  the  senate. 

"  The  president  of  the  court  for  the  trial  of  impeach- 
ments and  the  correction, of  errors,  and  every  member  of  the 
said  court,  and  all  judicial  officers  in  this  state,  hereafter  to  be 
elected  or  appointed,  shall  also,  before  they  enter  upon  the  exe- 
cution of  their  respective  offices,  severally  take  and  subscribe  the 

following  oath,  to  wit:  /, ,  do  solemnly  swear  and  declare 

that  I  will,  to  the  best  of  my  knowledge  and  ability,  execute  the  office 
of  [here  describe,  the  office]  according  to  tJtc  constitution  and  laws 
ofihc  stale  of  .Veic-  York  in  defence  of  the  freedom  and  independence 
h'ifrcnf,  and  for  the  maintenance,  of  liberty,  and  the  distribution  of 
justice  among  the  citizens  and  inhabitants  of  the  same  state,  without 
any  ft-ar.  favour,  partiality,  affection,  or  hope  of  reward  "  s.  3. 


OATHS.  319 

Sect.  4-,  5,  6,  7,  8,  and  9,  prescribe  the  oaths  of  the  secretary 
of  state,  and  attorney-general,  of  sherifi's,  coroners,  district  at- 
torneys, surrogates,  registers,  clerks,  arid  all  other  ministerial 
jiiirers. 

"  The  lieutenant-governor  of  this  state,  the  chancellor 
of  this  state,  the  judges  of  the  supreme-  court,  secretary  of 
this  state,  and  attorney-general,  the  judges  and  clerks  of  the  re- 
spective counties  of  this  state,  shall,  by  virtue  of  their  several 
offices,  be.  commissioners  for  administering  oaths  to  every  person 
who  shall  hereafter  be  appointed  to  any  office,  civil  or  military ; 
a"i<!  the  «iid  commissioners,  after  administering  the  said  oath  or 
01  ihs,  shall  cause  the  same  to  be  subscribed  with  the  proper  names 
,ar.d  hand-writing  of  tuc  person  or  persons  taking  the  same,  on 
rolls  to  be  provided  for  that  purpose,  containing  proper 'captions, 
with  the  said  o  I'lis  written  at  length  thereon,  which  rolls  shall 
be  deposited  as  follows,  to  wit:  Those  containing  the  oaths  and 
subscriptions  of  any  governor,  lieutenant-governor,  president  of 
t'  senate,  member  of  the  senate,  or  assembly,  chancellor,  judge- 
of  the  supreme  court,  judge  of  the  couft  of  probates,  or  any  offi- 
cei  of  cither  of  the  said  courts,  or  attorney-general,  or  secretary 
of  this  state,  or  district-attorney,  or  military  officer,  whose  office 
shall  extend  into  more  than  one  county,  shall  be  deposited  and 
kept  in  (lie  office  of  the  secretary  of  this  state;  and  those  con- 
taining the  oaths  and  subscriptions  of  the  respective  coti»;ty  offi- 
cers, both  civil  and  military,  shall  be  deposited  and  kept  in  the 
oflice  of  the  clerk  of  the  same  county."  s.  10. 

"  If  any  officer,  civil  or  military,  in  this  state,  shall  execute 
hi-  office  without  having  first  taken  and  subscribed  the  oaths 
or  affirmations  required  by  law,  and  the  oath  to  support  the 
constitution  of  the  United  States,  such  officers  shall  thereby  for- 
feit their  said  offices  respectively,  and  be  removed  therefrom  ; 
and  such  neglect  or  omission  is  hereby  declared  to  be  a  misdemea- 
nour, indictable  and  punishable  by  fine  and  imprisonment."  a.  II. 

Sect.  12  requires  the  clerk'of  each  county,,  on  or  before  the 
15th  day  of  January  in  every  year,  to  give  information  to  the, 
governor,  of  .such  persons  as  have,  and  such  as  have  not  taken 
the  oaths  prescribed,  and  also,  of  all  vacancies  in  any  civil  office 
in  the  county. 

"If  any  commissioner  herein  before  named,  shall  not  make 
a  return  of  the  rolls,  containing  the  names  of  all  such  officers 
to  whom  he  shall  have  administered  the  oaths  of  office,  within 
six  months  after  he  shall  have  administered  the  said  oaths, 
every  such  person  neglecting  to  make  such  return  as  aforesaid, 
shall  forfeit  to  the  people  of  this  state  the  sum  of  twenty-five,  dol-  , 
lars,  to  be  sued  for  and  recovered,  with  costs  of  suit,  before ^my 
court  having  cognizance  of  the  same,  by  the  clerk  of  the  county 
in  which  t.hr  saul  person  so  making  default  as  aforesaid  shall  re- 
side ;  one  moiety  of  which  forfrit.in-e,  when  recovered,  shall,  by 
the  clerk,  be  paid  into  the  hands  of  the  treasurer  of  the  said  coun- 


320  PERJURY  AND  SUBORNATION. 

ty,  <o  he  disposed  of  in  such  manner  as  the  board  of  superviso: 
the  county  shall  direct:  and  it  shall,  he  lawful  for  the  said  cl  M 
retain  the  other  moiety  of  the  said  forfeiture  for  his  own  use."  s.  '. 
SetTtmm.          "Nothing  herein   before  contained   shall  he  construed   i< 

.tend  to  any  county  treasurer,  supervisor,  town-clerk,  commis- 
sioner of  the  highways,  assessor,  collector,  constable,  or  ot. 
town  officer."  s.  I  4. 

"  It.  shall  be  lawful  for  any  person  empowered  to  adminis- 
ter an  oath,  to  administer  it  in  the  following  form  to  all  per- 
sons who  shall  declare  they  have  conscientious  scruples  about 
the  present  mode  of  administering  oaths,  by  laying  (lie  hand  on 
and  kissing  the  gospels,  to  wit:  The.person  swearing  shall,  with 
his  or  her  hand  uplifted,  swear  by  the  ever-living  God.  and  s:- 
not  be  compelled  to  lay  the  hand  on,  or  kiss  the  gospels ;  and 
oaths  so  administered  shall  be  equally  effectual,  and  expose  such 
person  to  the  like  pains  and  penalties  for  wilful  and  corrupt  per- 
jury, as  oaths  administered  in  the  usual  form."  s.  15. 

"Every  person  believing  in  the  existence  of  a  Supteme  Be- 
ing, and  a  future  state  of  rewards  and  punishments,  who  shuii 
have   conscientious    scruples    against    taking  an    oath,  shall,    in 
all  cases  where  an  oath  is  upon  any  lawful  occasion  to  be  admin- 
istered, b&  admitted,  instead  of  taking  an  oath,  to  make  his  or  IK  ; 
solemn  affirmation,  or  declaration,  in  the  following  form,  to  wit : 
You  do  solemnly,  sincerely  and  truly  declare  and  affirm  ;  whir 
lemn  affirmation  and  declaration  shall  be  equally  valid  as  if  su 
person  had  taken  an  oath  in  the,  usual  form  ;  and  every  person 
guilty  of  falsely  and  corruptly  affirming  and  declaring  as  afores^ii!, 
shall  incur  and  sufier.the  like  painst  and  penalties  as  are. 
be  inflicted  on  persons  convicted  of  wilful  and  corrupt  perjury."  s.  1 6. 

By  the  6th  article  of  the  constitution  of  the  United  Statr 
executive  and  judicial  officers,  both,  of  the  United  States,  ami 
the  several  states,  shall  be.  bound  by  oath  or  affirmation  to  sup, 
the  constitution.     By  the  act  of  June  1st,  1789,  s.  1.  (1  Lriw: 
S.  25.).  the  following  form  of  the  oath,  or  affirmation,  is  prescri- 
bed: /,  A.  B.  do  solemnly  swear,  or  affirm,  (as  the  case  n. 
that  I  will  support  the  constitution  of  the  United  States. 


PERJURY  AND  SUBORNATION. 

3inst.t54.          Perjury  is  defined  by  Sir  Edward  Coke,  to  be  a  cr 

Com.  137.        mitted  whun  a  lauful  oath  is  administered,  in  some  judicial  pro- 


ceeding, to  a  person  who  swears  leilfully^  absolutely,  and  falsely,  in 
a  matter  material  to  the   issue   or  point  in  question.     The   law 
takes  no  notice  of  any  perjury,  but  such  as  is  committed  in  some 
court  of  justice,  having  power  to  ad-miaifter  an  oath  ;  or  i 
some  magistrate,  or  proper  of?cvr,  in  vested  with  a  similar  ;iuf!io 
rity,  iu  some  proceedings  relative  to  a  civil  suit  or  a  crimii: 


PERJURY  AND  SUBORNATION.  S2J. 

sedition:  for  it  esteems  all  other  oaths  unnecessary  at  least,  and 
therefore,  will  not  punish  the  breach  of  them.  The.  perjury  must 
also  be  corrupt,  wilful,  positive,  and  absolute  ;  not  upon  surprise, 
or  the  like  :  it  also  must  be  in  some  puitit  material  to  the  question 
in  dispute  ;  for  if  it  only  be  in  some  trilling  collateral  circum- 
stance, to  which  no  regard  is  paid,  it  is  no  more  penal  than  in  the 
voluntary  extrajudicial  oaths  before  mentioned. 

A  man  may   be  indicted  for  perjury,  in  swearing  that  he  be-   Leac1i,27O. 
lieves  a  fact  to  be  true,  which  he  must  know  to  be  false. 

Subornation  of  perjury  is  the  offence  of  procuring  another  to  *  Black, 
take   such  a   false   oath   as   constitutes   perjury   in   the   principal.  C"m' ij 
Perjury   and  subornation  are  punishable  at  common  law  by   line 
and  imprisonment,  and  incapacity  to  be  a  witness. 

The  party  may  likewise  be  prosecuted  on  the  act  to  prevent  per-  IB.  i,  i?.<. 
jury,  (st;ss.  '2 i.  c.  74.)  by  which  it  is  enacted,  sect.  1.  "That  if  any 
person  shall  unlawfully  and  corruptly  procure  any  witness,  by 
any  means  whatsoever,  to  commit  any  wilful  and  corrupt  perjury, 
in  any  matter  or  cause  depending,  or  to  depend,  in  the  court  of 
chancery,  or  in  the  court  of  probates,  or  in  any  court  of  resord, 
or  before  any  judge,  justice  of  the  peace,  mayor,  recorder,  or  al- 
derman, or  shall  unlawfully  and  corruptly  procure  any  witness 
who  shall  he  sworn  to  testify  in  perpcluam  rei  inemoriam,  every 
such  person  shall,  for  every  such  offence,  be  adjudged  guilty  of 
subornation  of  perjury  :  and  if  any  person,, either  by  the  suborna- 
tion of  another,  or  by  his  or  her  own  act  or  consent,  shall  wilfully 
and  corruptly  swear  or  alarm  falsely  in  any  of  the  courts  afore- 
-said,  or  before  any  person  having  competent  authority  to  admin- 
ister such  oath  or  affirmation,  every  such  person  shall  be  adj;idgvd 
guilty  of  wilful  and  corrupt  perjury  ;  and  every  person  convicted 
of  subornation  of  perjury,  or  of  wilful  and  corrupt  perjury,  shall 
sot  thereafter  be  received  as  a  wituuss,  to  be  sworn  in  any  matter 
or  cause  whatsoever,  until  the  judgment  given  against  him  or  her 
be  reversed." 

"  In  every  information  or  indictment  to  be  prosecuted  against 
any  person  for  wilful  and  corrupt  perjury,  either  at  the  com- 
mon law,  or  upon  this  act,  it  shall  be  sufficient  to  set  forth 
the  substance  of  the  offence  charged  upon  the  defendant, 
and  by  what  court,  or  before  whom  the  oath  was  taken,  averring 
such  court  or  person  to  have  a  competent  authority  to  adm'mis'cr 
the  same,  together  with  the  proper  averments  to  falsify  the  mat- 
ter wherein  the  perjury  is  assigned,  without  setting  fortli  any  part 
of  any  record  or  proceedings,  either  in  law  or  equity,  other  than 
as  aforesaid,  and  without  setting  forth  the  commission  or  autho- 
rity of  the  court,  or  person  before  whom  the  perjury  was  commit* 
ted.  And  in  every  indictment  or  information  for  subornation  of 
perjury,  either  at  c  nmmon  law  or  upon  this  act.  it  shall  ho  suffi- 
cient to  set  forth  che  substance  of  the  offence  charged  upon.  th<> 
defendant,  without  setting  forth  an}'  part  of  any  record  or  pro 
ree-lin^s,  either  in  law  or  equity,  and  without  setting  forth  tb<>. 


322  PERJURY  AND  SUBORNATION. 

commission  or  authority  of  the  court,  or  person  before  whom  the 
perjury  was  committed,  or  was  agreed  or  promised  to  be  com- 
mitted." s.  2. 

Sect.  3  empowers  judges  of  the  supreme  court,  circuit  court, 
or  court  of  oyer  and  terminer,  sitting  the  court,  or  within  twenty- 
four  hours  thereafter,  to  direct  a  prosecution  for  perjury  against 
any  person  examined  as  a  witness  before  them. 

By  stat.  sess.  36.  c.  2$.  s.  20.  perjury  and  subornation  of  per- 
jury are  punishable  with  imprisonment  in  the  state-prison  for  any 
term  not  exceeding  ten  years,  according  to  the  nature  and  aggra- 
vation of  the  offence.  1  R.  L.  412. 

Besides  the  cases  enumerated  in  the  act  before  recited,  in 
which  perjury  may  be  committed,  the  legislature  has  provided 
that,  in  certain  other  cases,  false  swearing  shall  be  deemed  per- 
jury, and  be  punished  as  such.  They  are  as  follows: 

By  the  insolvent  act,  sess.  36.  c.  98.  s.  30,  if  any  person  in  any 
oath  or  affidavit,  to  be  taken  in  pursuance  of  that  act,  shall  affirm 
or  swear  falsely,  he  shall  be  liable  to  the  same  penalties  as  those 
who  are  convicted  of  wilful  and  corrupt  perjury.  1  R.  L.  4-71. 

Persons  examined  on  oath  under  the  absent  and  absconding 
debtor  act.  Sess.  24-.  c.  49.  s.  13.  1  R.  L.  101. 

Managers  of  lotteries,  for  violating  the  oath  which  they  are  re- 
quired to  take  before  entering  on  the  duties  of  their  appointment. 
Sess.  36.  c  1  98.  s.  2.  1  R.  L.  270. 

A  surveyor  of  the  land-office,  making  a  false  return  of  the  sur- 
vey by  him  made,  or  returning  an  appraisement  of  lands  variant 
from  the  true  value,  or  without  having  personally  surveyed  and 
explored  the  same,  shall  be  deemed  guilty  of  perjury.  Sess.  30. 
c.  74.  s.  23.  1  R.  L.  292. 

Every  person  committing  perjury  in  any  affidavit  made  before 
a  commissioner  of  the  supreme  court,  or  other  person  empowered 
to  take  affidavits  to  be  read  in  the  supreme  court,  concerning  any 
cause  depending  in  the  said  court,  or  in  the  court  of  exchequer, 
shall  incur  the  same  penalties  as  if  such  affidavit  had  been  mada 
in  open  court.  ~Sess.  3Q.  c.  3.  s.  12.  1  R.  L.  321. 

Perjury  committed  in  any  affidavit  before  a  commissioner  ap- 
pointed to  take  affidavits  to  be  read  in  chancery,  is  subject  to  the 
same  penalties  as  if  the  same  had  been  taken  before  a  master. 
Sess.  3d.  c.  95.  s.  17.  1  R.  L.  4!/2. 

False  swearing,  under  the  act  concerning  quit  rents,  is  declared 
perjury.  Sess.  3-d.  c.  I  19.  s.  i  5.  2  R.  L.  ISO. 

False  shearing,  in  ah  oath  administered  by  .  chainnan  of  a 
committee  of  the  senate  or  assembly,  or  of  a  joint  committee  of 
the  two  houses,  is  declared  perjury.  Sess,  30.  c.  19. 


PHYSICIANS  AND  SURGEONS. 

PHYSICIANS  AND  SURGEONS, 

P.y  the  ad  to  inctrporale  medical  societies,  sess.  36.  c.  94.  s.  9- 
the  medica,  societies  of  the  respective  counties  are  empowered 
to  examine  studi-nts,  and  give  them  diplomas  under  the  hand  of 
ths-  president  and  seal  of  the  society,  which  shall  l>e  sufficient  to 
empower  them  to  practise  physic  or  surgery,  or  both,  as  shall  lie 
set  forth  in  the  diploma,  in  any  part  of  this  state  ;  and  by  sect. 
10.  the  student,  if  refused,  may  apply  to  the  state  medical  soci- 
ety, which,  if  in  their  opinion  he  is  well  qualified,  may  grant  him 
a  diploma,  under  the  hand  of  the  president,  and  seal  of  the.  society. 

Any  person  practising,  without  having  obtained  a  diploma,  shall 
forever  thereafter  be  disqualified  from  collecting  any  debto  in- 
curred by  such  practice  in  any  court  of  this  state,  s.  12. 

"  Any  person  who  shall  practise  physic  or  surgery,  without 
being  regularly  licensed,  shall  forfeit  and  pay  twenty-live  dollars 
for  each  offence  of  which  he  may  h«  duly  convicted,  to  be  reco- 
vered with  costs  of  suit  before  any  justice  of  the  peace  of  the 
county  where  such  penalty  shall  be  incurred,  by  a*jy  person  who 
will  prosecute  for  the  same  ;  and  the  justice  before  whom  such 
conviction  may  be  had,  shall  pay  the  same  to  the  overseers  of  the 
poor  of  such  town  where  such  conviction  shall  be  had,  for  the 
use  of  the  poor  thereof,  whose  duty  it  shall  be  to  prosecute  for  the 
same  :  Provided,  The  person  so  practising  without  license,  who 
-shall  not  receive  any  fee  or  reward  for  the  same,  shall  be  exempt 
from  the  penalty  of  this  act.  And  provided  also,  That  nothing  in 
this  act  contained  shall  be  construed  to  extend  to  debar  any 
person  from  using  or  applying  for  the  benefit  of  any  sick  person, 
any  roots,  bark  or  herbs,  the  growth  or  produce  of  the  United 
States."  s.  20. 

In  an  action  before  a  justice  to  recover  the  penalty  of  twenty-  cjf^V 
five  dollars,  for  practising  and  administering  medicine  contrary  to  Johns!  Hep. 
the  act,  it  was  proved  that  the  defendant  had  administered  medi-  *13' 
cine  within  six  months  before  the  trial,  and  the  justice  gave  judg- 
ment for  the  penalty.      On  certiorari,   the  judgment  was  affirmed. 
Per  curia m.    The  averment,  that  the  defendant  practised  physic 
contrary  to  the  statute  was  sufficient ;  and   it  was  incumbent  on 
the  defendant  by  his  plea,  to  have  brought  himself  within  some  of 
the  provisos  of  the  act.     As  he   has  not  done  so,  either  by  plead- 
ing or  evidence,  we  are  of  opinion  that  the  judgment  ought  to  be 
affirmed. 

"  All  persons  who  may  be  hereafter  licensed  to  practise  physic 
and  surgery,  shall  deposit  a  copy  of  such  license  with  the  clerk 
of  the  county  in  which  such  practitioner  may  reside  ;  and  until 
such  license  shall  be  ?o  deposited,  those  practitioners  who  may 
neglect  the  same  .-hall  be  iable  to  the  penalty  of  this  act,  in  the 
same  manner  as  if  l!:cy  had  no  such  license."  s.  21. 

"Nothing   in  t»ii*  act  contained  shall  be  construed   to  prevent 


-324  POLYGAMY. 

any  person  coming  from  any  other  state  or  country  from  prac- 
tising physic  or  surgery  within  this  state,  such  person  being  duly 
authorized  to  practise  by  the  laws  of  such  state  or  country,  hav- 
ing a  diploma  from  a  regular  medical  society."  s.  22. 


POLYGAMY. 

i  East   p  c        Polygamy,  or,  as  it  is  more  frequently  though  improperly  call- 
454.  ed,  bigamy,  (which  only  means  having  two  wives  in  succession,) 

consists  in  having  a  plurality  of  wives  at  the  same  time. 
IR.L.  113.  It  is  provided  by  the  act  to  restrain  all  persons  from  marrying 
until  their  former  wives  and  former  husbands  be  dead,  sess.  1 1.  c. 
2 i.  "  That  if  any  person  or  persons  being  married,  or  who  here- 
after shall  marry,  do,  at  any  time,  marry  any  person  or  persons, 
the  former  husband  or  wife  being  alive,  then  every  such  offence 
shall  be  felony;  and  the  party  and  parties  so  offending  shall  re- 
ceive such  and  the  like  proceedings,  trial,  judgment  and  execu- 
tion, in  the  county  where  such  person  or  persons  shall  be  ap- 
prehended, as  if  the  offence  had  been  committed  in  the  same 
county  where  such  person  or  persons  shall  be  taken  or  ap- 
prehended ;  but  neither  this  act,  nor  any  thing  therein  con- 
tained, shall  extend  to  any  person  or  persons  whose  husband  or 
tvife  shall  be  continually  remaining  without  the  United  States  of 
America  by  the  space  of  five  years  together,  or  whose  husband 
or  wife  shall  have  absented  him  or  herself,  the  one  from  the  other, 
by  the  space  of  five  years  together,  the  one  of  them  not  know- 
ing the  other  to  be  living  within  that  time;  norlG-aay  person  or 
persons  who  are,  or  shall  be,  at  the  time  of  such  marriage,  di- 
vorced by  the  sentence  or  decree  of  any  court  having  cognisance 
thereof;  nor  to  any  person  or  persons  where  the  former  marriage 
hath  been,  or  shall  be,  by  the  sentence  or  decree  of  any  such 
court,  declared  to  be  void  and  of  no  effect ;  nor  to  any  person  or 
persons  for  or  by  reason  of  any  former  marriage  had  or  made,  or 
to  be  had  or  made  within  the  age  of  ronsent." 

On   the  construction  of  the   similar  statute,    I  Jac.  I.e.  II.it 

has  been  held,  that  where  the  first  marriage  was  in  England,  and 

the  second  abroad,  it  was   not  within  the  act :  for  the  second 

marriage,  which  alone  constitutes    the   offence,  is  a   fact    done 

.  within  another  jurisdiction  ;  and  to  the  propriety  of  this  opinion, 

Mr.  East,  2  P.  C.  465.  fully  accedes. 

4  Black.  In  the  stat.  of  James  there  is  also  a  proviso,  that  it  shall   not 

2 Hst1  p. e  extP"d  to  any  person  whose  husband  or  wife  shall  be  continually 
466,467.  remaining  beyond  the  seas,  &c.  Upon  this  branch  the  construc- 
tion has  been,  that  where  either  of  the  parties  is  beyond  the  seas 
for  the  specified  time,  though  the  part}-  in  England  have  notice 
that  the  other  is  living,  it  is  no  felony  to  /marry  again,  although 
the  second  marriage  be  void  :  but  to  bring  the  case  within  the 


POOR.  325 

next  following   exception  it  is  absolutely  necessary  that  the  one 
should  not  know  the  other  to  be  living  within  the  five  years. 

The   age  of  consent  spoken  of  in  the  last  exception  is,  in  the    16^a'!'B?"  F* 
men,  fourteen,  and,  in  the  woman  twelve  ;  and  if  either  party  be  com.  164. 
under  that  age,  the  power  to  dissent  to  the  former  marriage  is  ^aniVa 
reciprocal.     But  if  both  are  above  those   respective  ages  at  the    Str.*3». 
time  of  the  first  marriage,   though    under  twenty -one,  a  second 
marriage  would  be  felony.     And  though  either  were  under  the 
age  of  consent  when   the  first  marriage  was  contracted,  if  they 
agreed  to  it  when  both  had  attained  such  age,  by  which  the  mar- 
riage is  completed,   it.  seems  that  a  second  marriage  would    be 
within  the  reason  and  penalties  of  the  act. 

By  the  act  concerning  divorces,  sess.  3f>.  c.  102.  s.  4.  after  a  3R.I»  W. 
marriage  has  been  dissolved  by  a  decree  of  the  court  of  chance- 
ry, it  shall  be  lawful  for  the  complainant  to  marry  again,  as 
though  the  defendant  was  actually  dead.  But  it  shall  not  be  law- 
ful for  the  defendant  who  shall  be  convicted  of  adultery  to  marry 
again  until  the  complainant  shall  be  actually  dead.  Hence  it  may 
be  inferred,  that  the  defendant,  in  such  case,  if  he  or  she  married, 
living  the  former  wife  or  husband,  would  be  subject  to  the  penal- 
ties of  the  act  against  polygamy. 

In  a  prosecution  for  this 'offence,  it  must  be  shown  that  there   ThePeepie 
was  a  marriage  in  fact  between  the  prisoner  and  the.  first  wife  ;   p),™.^1" 
his  confession  is  not  sufficient  evidence  of  that  point ;  ether  proof  *  Johns.Rej>. 
of  it  will  be  requisite  in  order  to  convict  him. 


POOR. 

I.  By  whom  to  be  supported:. 
II.  Settlement. 

III.  Removal. 

IV.  Certificate. 
V.  Appeal. 

VI.  Poor-rate. 
VII.  Mode  of  relief. 
VIII.   Overseers'  accounts. 

I.  By  whom  to  be  supported. 

By  the  act  for  the  relief  and  settlement  of  the  poor,  sess.  36.  c.  78. 
s.  1.  ( 1  R.  L.  27 1-))  it  is  provided  "  That  every  city  and  town  shall 
support  and  maintain  their  own  poor." 

"  In  case  of  the  division  of  any  town,  the  supervisors  and 
overseers  of  the  poor  of  the  several  towns  erected  by  such 
division,  shall,  without  delay,  divide  and  apportion  the  money  ap- 
propriated for  the  support  of  the  poor,  and  the  poor  belonging  to 
such  town  so  divided,  in  proportion  to  the  last  tax  list ;  aiid  the 
poor,  so  apportioned,  shall  be  deemed  to  belong  to  the  town  to 
which  they  may  be  thus  apportioned  ;  and  in  case  any  poor  per* 


POOR. 

son,  who  shall  have  heen  an  inhabitant  of  any  town  so  divided, 
and  legally   settled  therein,  shall  return  into  either   of  thi 
towns,  such  poor  person  shall  be  maintained   by^  the   tuwn,  i. 
ding  the  part  of  the  town  so  divided  in  which  such  poor  person 
was  last  legally  settled  or  had  resided.'*  s.  I  1. 

This  cause  came  before  the  court  on  an  appeal  from  an  order 
*.u*en-9n  of  the  general  sessions  of  the  peace  of  Dutchess  county.  It  ap- 
'zJrfuvf&en.  Peareo<,  that  me  Huddltstone  and  his  wife,  and  four  infant  chil- 
393.  dren.  were  removed,  as  paupers,  from  the  towu  of  Stanford 

town  of  Washington,  by  an  order  of  two  justice*,  dated  t!  • 
of  December,  1  80o,  which  stated  that  the  paupers  had   become 
chargeable  to  the  town  of  Stanford,  and  had  not  gained  ai •  v 
settlement  therein,  and  they  adjudged  the!'  -'lenient  to 

be  in  file  town  of  Washington.  Previous  to  this  order,  ti  • 
pers  had  been  removed  to  the  town  of  Stanford,  by  an  order  of 
two  justices  of  Ulster  county,  dated  the  31st  day  of  October, 
1806,  adjudging  that  to  be  the  town  from  which  they  had  last 
come,  and  that  they  bad  gained  no  settlement  in  the  town  of 
"Wawasink,  from  which  they  were  removed.  From  the  last  order 
there  was  no  appeal  made.  The  towns  of  Washington  and  Stan- 
ford were  formerly  one  town,  by  the  name  of  Washington.  By 
an  act  of  the.  12th  of  March,,  17^3,  the  town  of  Washington  was 
divided,  anda  part  thereof  erected  into  a  new  town,  by  the  nairre 
of  Stanford,  and  the  poor  of  the  former  town  w»  re  divided,  no- 
cording  to  the  act,  between  Washington  'and  Stanford.  Huddle- 
atone  was  born  in  Washington,  before  it  was  divided,  and  in  that 
part  of  it  included  in  the  present  town  of  Washington.  At  the 
^  time  the  town  was  divided,  he  resided  in  that  part  of  it  now  cal- 
led Stanford,  but  was  not  then  chargeable.  On  an  appeal  to  the 
general  sessions  of  the  peace  of  Dutchess  county,  from  the  first 
mentioned  order,  the  court  decided,  that  with  respect  to  the  set- 
tlement of  the  pauper,  the  towns  of  Washington  and  Stanford 
Jiiust  be  considered  as  if  they  had  always  been  separnte,  and  that 
he  must  therefore  be  deemed  chargeable  to  the  town  of  Wash- 
ington, having  been  born  in  that  part  of  the  old  town  now  called 
Washington,  and  the  order  was  affirmed.  Proof  was  offered  to 
the  sessions,  that  at  the  time  of  the  division  of  the  town,  the  su- 
pervisors _and  overseers  of  those  two  towns  agreed,  that  each  town 
should  support  all  such  persons  as  were  then  inhabitants  of  each 
town,  and  who  should  thereafter  become  chargeable  ;  but  t; 
titnuny  was  overruled.  From  the  judgment  of  affirmance,  the 
overseers  of  the  poor  of  Washington  appealed  to  this  court. 

VAN  NESS,  J.  When  a  new  town  is  erected,  it  immediately 
becomes  entitled  to  all  the  benefits  and  advantages,  and  subject 
to  all  the  duties  and  burthens  common  to  other  towns.  Among 
the  latter,  is  fhe  burthen  of  maintaining  the  poor.  The  provi- 
sions of  the  general  law  for  the  maintenance  and  relief  of  the 
''poor,  attach  on  the  new  town  the  moment  it  is  erected.  This 
being  granted,  it  skeins  to  rrie  to  put  a'n  end  to  the  question  now 


POOR. 

>> 

under  consideration.  That  birth  gives  a  settlement,  is  not  t.>  be 
disputed,  as  a  general  rule  ;  indeed  this  is  assumed  as  a  fixed  prin- 
ciple by  our  statute.  Huddlestone,  who  became  a  pauper  iu  1806, 
was  chargeable,  therefore,  to  the  town  in  which  lie  was  born, 
which  is  the  present  town  of  Washington,  unless  he  has  obtained 
a  legal  settlement  elsewhere.  It  is  not  pretended  that  he  has 
gained  such  settlement,  unless  his  residence  within  the  bounds  of 
the  present  town  of  Stanford,  at  the  time  of  the  passing  of  the 
act  to  divide,  the  town  of  Washington,  in  1793,  has  had  that  effect. 
The  act  provides,  that  after  a  division  of  the  poor,  each  town 
shall  maintain  its  own  poor,  that  is,  after  tin;  division,  those  towns, 
in  relation  to  the  support  of  the  poor,  as  regulated  and  defined 
by  the  general  poor-laws,  shall  stand  on  the  same  footing  as  other 
towns.  There  is  another  view  of  this  question,  which  appears  to 
be  conclusive.  Suppose  the  pauper  in  1  ti06  had. resided  in  the 
town  of  Poughkeepsie,  and  it  had  been  necessary  to  remove  him 
from  thence  to  the  town  in  which  he  had  acquired  a  legal  settle 
merit,  I  think  that  there  can  be  no  doubt  that  the  town  of  Wash- 
ington would  be  considered  as  the  town  to  which  he  was  chargea- 
ble. In  the  c  ise  juat  supposed,  the  provisions  of  the  general 
poor-law  certainly  would  have  prevailed.  The  evidence  offered 
respecting  the  agreement  was  properly  rejected.  That  agree- 
ment, if  made,  was  not  obligatory,  and  can  never  control  the  ope- 
ration or  construction  of  a  statute. 

SPENCER,  J.  In  my  opinion  the.  town  o'f  Washington  is  boupd 
to  support  them,  as  paupers  chargeable  on  that  town.  After  the 
separation  of  the  town  of  Washington,  and  the  division  of  the 
poor,  according  to  the  act  of  1793,  with  respect  to  all  future  pau- 
pers, they  stood  in  the  same  situation,  in  respect  to  each  other, 
as  any  other  towns  in  the  state,  and  as  though  they  had  al- 
ways been  distinct,  towns  ;  the  requisition  of  the  statute,  that 
after  the  division  of  the  paupers,  the  towns  should  maintain  their 
respective  poor,  never  attached  on  Stanford,  because  HudtflestOM 
had  gained  no  settlement  there,  but  it  did  attach  on  Washington 
in  consequence  of  the  birth  of  Huddlestone  within  its  bounds. 
Birth  is  not  one  of  the  means  mentioned  in  the  statute,  of  acqui- 
ring a  settlement ;  but  the  statute  presupposes  that  it  gave  settle- 
ment, and  it  has  accordingly  been  holden  that  the  town  where  a 
pauper  is  born  is  chargeable  with  his  maintenance  until  he  ac- 
quires some  other  settlement.  The  sessions  very  properly  over- 
ruled the  evidence  of  declarations  made,  when  the  poor  were  disr 
>1 ;  the  supervisors  and  overseers  of  the  poor  had  no  autho- 
rity to  make  any  agreement  relative  to  future  paupers ;  and  it 
would  be  extraordinary  to  receive  it  as  evidence  of  their  sense  of 
the  I,MV.  KKIVT,  Ch.  J.  dissented.  Order  affirmed. 

"  In  all  cases  where  any  of  the  present  poor  in  any  county  of 
this  state  are  maintained  by  !he.  vvhule  county,  or  by  more  than  one 
town,  such  poor  person;;  shall  continue  lobe  so  mainta'cied."  s.j)2. 

"The  father  and  ;,!•;•  n;l fat hr;\  mwther  and  grandmother,  beiu.?. 


328  POOR, 

of  sufficient  ability,  of  any  poor,  blind,  lame,  or  decrcpid  person 
whomsoever,  not  being  able  to  maintain  himself,  and  becoming 
chargeable  to  any  city  or  town  within  this  state,  and  the  children 
and  grand-children,  being  of  sufficient  ability,  of  every  poor,  old, 
blind,  lame,  or  impotent  person,  not  being  able  to  maintain  him- 
self, and  becoming  chargeable  as  aforesaid,  shall  respectively,  at 
their  own  charge  and  expense,  relieve  and  maintain  every  such 
poor  person,  in  such  manner  as  the  justices  of  the  peace  of  the 
city  or  county  where  such  sufficient  person  shall  dwell,  at  their 
general  sessions  of  the  peace,  shall  order  and  direct,  on  pain  of 
forfeiting  and  paying  one  dollar  and  twenty-five  cents  for  each 
person  so  ordered  to  be  relieved,  for  every  week  such  order  shall 
not  be  obeyed,  to  be  sued  for  and  recovered,  -with  costs  of  suit, 
by  the  overseers  of  the  poor  of  the  city  or  town  to  which  such 
poor  person  shall  be  chargeable,  for  the  use  of  the  poor  of  such 
See  sect.  zo.  city  or  town,  in  the  manner  herein  before  directed,  with  respect 
and  post  v.  jo  cosjs  anc|  charges  UpOn  an  appeal."  s.  21. 

R.  v.  Mun-  The  persons  to  be  charged  must  be  the  natural  relations  of  the 
st".'  i9o.  pauper  ;  hence  a  husband  will  not  be  bound  to  maintain  his  wife's 
Tubbv.  parents,  or  her  children  by  a  former  marriage:  neither  is  a  has- 

Harnson,  ..... 

4  TermUep.   tard  witlun  the  statute,  and  although  his  parents  are  compellable 

Co'n  Dte        *°  suPPort  him,  yet  the  obligation  does  not  extend  to  his  putative 

Justices  of      grandfather. 

{B.a«j  "  It  shall  be  lawful  for  the  overseers  of  the  poor  of  any  city  or 

town  within  this  state,  where  any  father  or  husband  shall  run 
away,  or  absent  himself  from  his  wife  or  children,  or  where  any 
widow  shall  run  away,  or  absent  herself  from  her  child  or  chil- 
dren, and  leave  any  of  them  a  charge  to  such  city  or  town,  to  ap- 
ply to  any  two  justices  of  the  peace  of  the  city  or  county  where 
any  estate,  real  or  personal,  of  any  such  father,  husband,  or  widow, 
or  any  part  thereof,  may  be,  and  by  warrant,  under  the  hands  and 
seals  of  the  said  two  justices,  who  are  hereby  authorized  and  re- 
quired to  issue  the  same,  to  take  and  seize  the  goods  and  chat- 
tels, and  to  let  out  and  receive  the  annual  rents  and  profits  of  the 
lands  and  tenements  of  such  father,  husband,  or  mother,  so  ab- 
sconding as  aforesaid,  for  and  towards  the  maintaining,  bringing 
up,  and  providing  for  such  wife,  child,  or  children,  so  left  as  afore- 
said ;  and  as  soon  as  the  said  seizure  shall  be  allowed  of  and  con- 
firmed by  the  justices,  in  their  general  sessions  of  the  peace,  it 
shall  be  lawful  for  the  said  overseers  of  the  poor,  or.  any  two  of 
them,  as  often  as  the  case  may  require,  to  sell  and  dispose  of  s» 
much  of  the  said  goods  and  chattels,  at  public  vendue,  to  tlie 
highest  bidder,  and  to  receive  the  said  rents  and  profits,  or  se 
much  thereof  as  shall  be  ordered  by  the  said  sessions,  and  t<> 
apply  the  money  arising  ^herefrom  towards  the  maintenance  of 
such  poor  family,  or  person,  so  left  as  aforesaid  :  And  further,  the 
said  overseers  of  the  poor  shall  be  accountable  to  the  justices  of 
the  peace,  IK  tb?!r  said  general  sessions^  for  all  such  monie^  as 


POOR.  329 

shall  arise  from  any  such  sale,  and  from  the  rents  and  profits  of 
such  lands  and  tenements."    s.  22. 

II.  Settlement. 

A  settlement  may  be  acquired  at  common  law  either  by  birth  *  Black, 
(for  wherever  a  child  is  first  known  to   be,  that   is   always  prima  3  Tobm. 
facie  the  place  of  settlement,  until  some  other  can  be  shown,)  or   ^^  19f',j 
bjt parentage ;  that  is,  a  child  not  emancipated,  and  constituting  Kaym.  svt. 
a  part  of  his  parent's  family,  obtains  a  settlement  wherever   the 
parent  may  be  legally  settled. 

The  fathers  settlement  is  the  settlement  of  the  children  when  3  Burns' Just, 
it  can  be  found  out;  otherwise  the  birth   of  the  child  is,  prima  5  rer.a  Hep. 
fade,  the  settlement  of  the  child,  until  there   is  another  settle-  653< 
uient  found  out.     If  a  child  be   dropt  in  a  parish,  they  may  re- 
move him  to  the  place  of  his  birth,  or  where   his   father's  settle- 
ment was,  and  the  settlement  by  birth  is  only  until  they  find  the 
father's  settlement;  and  if  they  never  can  find  that,  it  is  absolute 
upon  them. 

if  the  mother  of  a  child  born  in  one  parish,  die  in  another  pa-  3Burns'just. 
rish  while  passing  to  a  third,  such  child  shall  be  settled  where  it  584- 
was  born,  and  not  in  the  parish  where  it  was  left  destitute  by  the 
death  of  the  mother. 

If  the  father  hath  no  settlement,  as  being  a  foreigner,  or  if  the  3  Burn»'Just. 
father's  settlement  is  not  known,  yet  if  the  mother  hath  a  settle-  585> 
ment,  the  children,  in  such  case,  shall  not  be  sent  to  the  place  of 
their  birth,  but  to  the  place  of  their  mother's  settlement. 

A  legitimate  child  shall  necessarily  follow  the  settlement  of  its  sBiirns'just. 
parents   as  a  nurse  child,  or   as   part  of  the  family,  only  until  it  i38' 
shall  be  seven  years  of  age  ;  and  after  that  age,  it  shall  not  be  re- 
moved  as  part  of  the  father's  family,  but  with  an  adjudication  of 
the  place  of  its  own  last  legal  settlement,  as  being  deemed  capa- 
ble at  that  age  of  having  gained  a  settlement  of  its  own. 

Where  a  father  gains  a  second  settlement  after  the  birth  of  his  5(SulTijUst' 
child,  that  settlement  is  immediately  communicated  to  the  child.  Raym.  133?. 
And  a  child  may  be  sent  to  the  place   of  his  father's  settlement,  1Str'580t 
without  ever  having  been  there  before,  as  well  after  his  death  as 
in  his  life-time,  supposing  they  have  gained  no  settlement  of  their 
own. 

If  the  futher  is  settled  in  the  parish  of  H.,  but  goes  to  work  in  ssaik.a.*?. 
the  parish  of  B.,  and  before  he  gains  any  settlement  there,  has  a  £"  j*olt* 
son  born  in  the  parish  of  B.,  and  then  dies,  this  child  shall  be  sent 
to  the  parish  of  H. ;  for  it  is  not  the  birth,  but  the  settlement  of 
the  father  that  makes  the  settlement  of  his  child  ;  and  if. the  fa- 
ther hath  gained  a  new  settlement  for   himself,  he  hath  likewise 
gained  a  new  settlement  for  his  children,  who   do   not  go  with 
him   to   his  new  settlement  as  nurse  children,  but  as  part  of  his 
family  :  but  if  a  man  is  settled  in  the  parish  of  H.,  and  haa  chil- 


330  POOR. 

drnn  born  there,  and  dies,  and  afterwards  the  mother  of  these 
children  marries  a  husband  who  is  settled  in  another  parish,  the 
children  shall  go  along  with  her,  not  as  part  of  her  family,  but 
»s  nurse  children,  to  be  maintained  at  the  charge  of  the  parish 
where  they  were  born,  and  where  their  father,  whilst  living,  was 
settled,  and  to  that  parish  they  may  be  sent  after  seven  years 
old,  as  to  the  place  of  their  lawful  settlement;  for  this  accidental 
settlement  of  their  mother,  which  was  only  by  the  marriage  with 
a  second  husband,  as  she  is  now  become  one  person  with  him, 
shall  not  go  in  a  settlement  for  her  children. 

Cumnerv.  H.  was  settled  at  Cumner,  and  had. several  children  born 
saik?%8  there  :  afterwards  he  removed  to  Milton,  and  gained  a  settlement 
see  sect.  10.  there.  He  became  poor,  and  his  children,  under  the  age  of 
post,  I/0  '  seven  years,  were  sent  back  to  Cumner,  by  order  of  two  justices, 
which  it  ap.  which  was  confirmed  by  the  sessions.  Holt,  Ch.  J.  The  question 

V-'Rrs  to  be  * 

sccopmst.1      is,  where  the  father  comes  with  his  children  to  Milton,  and  gains 
m^nt^fgain-  a  settlement  there,  whether  this  does  not  also  give  a  new  settle- 
*d  hy  paren-  ment  to  his  children,  and  unsettle  them  as  to  Cumner,  the  place 
of  their  birth  ?  If  a  father  be  settled  and  die,  his  wife  being  big 
with  child,  and  after  that  the  mother  dies  before  she  is  delivered, 
and  afterwards  the  child  is  born,  the  child  is  settled  there  by  his 
birth.  In  this  case,  the  settlement  of  the  father  at  Milton  is  a  set- 
tlement to  the  children.  The  child  is  settled  by  birth  only,  where 
it  is  an  accidental  settlement.    The  order  was  quashed. 
woodurd  v.        So,  where  the  mother,  after  the  father's  death,  removed  to  an- 
^ai'iSl>Uay'm    °tner  parish  with  her  daughter,  about  the  age  of  fourteen,    and 
1473.'  there  gained  a  settlement,  it  was  held   that  the  legal  settlement 

of  the  daughter  was  in  the  parish  to  which  she  had  removed 
wii'i  her  mother,  and  there  is  no  difference  between  a  father's 
gaining  a  settlement  and  a  mother's,  in  such  a  case  as  this.* 
3  Term  Rep.  But  when  the  child  becomes  emancipated,  or  independent  of 
the  father  or  mother's  family,  the  rule  ceases  to  exist,  and  he  has 
that  settlement  which  his  parent  had  at  the  time  of  emancipation. 
He  is  said  to  be  emancipated  when  he  arrives  at  the  age  of 
twenty-one,  or  is  married,  or  has  gained  a  settlement  in  his  own 
right,  or  has  contracted  a  relation  inconsistent  with  the  idea  of 
his.  being  in  a  subordinate  situation  in  his  father's  family. 
27oUrr  S  C*  ^°  where  a  son  marries  and  leaves  his  father's  family,  and 
lives  by  himself;  and  after  this  the  father  gains  a  new  settlement 
in  another  parish ;  the  son  shall  not  follow  the  father  in  this  new 
settlement,  thus  afterwards  gained  by  the  father.  The  son,  by 
virtue  of  his  marriage,  becomes  the  head  of  his  own  family, 
which  is  to  be  considered  as  an  independent  family. 

s  Term  Rep-  The  settlement  of  a  child  five  year's  old,  leaving  the  father's 
famil3r,  and  living  with  different  relations  till  tea,  follows  that 
of  his  father,  if  he  has  not  gained  any  settlement  in  his  own  right ; 
for  the  father  has  still  the  right  to  the  custody  of  the  son,  and 
might  obtain  him  by  habeas  corpus.  It  is  not  necessary  in 
these  cases  of  derivative  settlements,  that  the  child  should  re- 


POOP.  331 

*nove   with  the  father  from   place  to  place,  for  the  settlement 
of  the  father  will  be  communicated  to  the  child. 

The  mere  circumstance  of  attaining  the  age  of  twenty-one  is   r,TermBep. 
not  an  emancipation  if  the  son  continue  to  live  with  the  father  ;   247t 
but  an  adult  who  leaves  his  father's  house,  and  goes  into  service, 
becomes  thereby  emancipated,  and  is  not  entitled  to  a  settlement 
gained  by  the  father. 

If  the  son  enlists  for  a  soldier,  he  thereby  becomes  emancipated,   i  Burr.  s.  c, 

Children  of  a  first  marriage  do   not  follow  the  •settlement  of  "rermHep. 
their  mother  in  right  of  a  second  husband,  unless   for  nurture  ;   67°« 
and  even  then   at  the  charge  of  the  parish  where  they  are  le- 
gally settled. 

Where  the  father  has  no  settlement,  the  child  will  follow  that   3  Burns' Just, 
of  its  mother.    The  child's  settlement  follows  that  of  its  father,   i°Burr.  s.  c. 
if  the  father  can  be  found  ;  and  no  recourse  shall  be  had  to  the    307.484.. 
mother's  settlement  till  that  of  the  father  can  be  traced  no  farther. 

No  child,  when  the  parent  is  removed  to  his  original  place  of  Sect.  10. 
settlement,  shall  gain  a  settlement  in  the  town  to  which  he  is  re- 
moved, but  it  shall  remain  as  before  such  removal. 

A   woman  marrying   a  man  that  is  settled  in    another  town,    i  Black, 
changes  her  own  settlement :  the  law  not  permitting  the  separa-   ^"^  ^rie. 
tion  of  husband  and  wife.    But  if  the  man  has  no  settlement,  her's   ton,  2  Burr, 
is  suspended  during  her  life,  if  he  remains  in  the  country  and  is 
abl--  to  maintain  her;  but  in  his  absence,  or  after  his  death,  she 
may  be  removed  to  her  original  place  of  settlement. 

A  wife  can  gain   no  settlement,    separate  and  distinct    from   3  Burns' Just, 
her  husband,  during  the  coverture. 

By  the  third  section  of  the  act  for  the  relief  of  the  poor>  it  is  pro- 
vided, "  That  every  bastard  child  shall  be  deemed  and  adjudged 
to  be  settled  in  the  city  or  town  of  the  last  legal  settlement  of  his 
or  her  mother." 

"  Every  person  who  shall  have  come  to  inhabit  in  any  city  or 
town  within  this  state,  and  shall  actually  and  liana  fide  have  rented 
and  occupied  a  tenement  of  the  yearly  value  of  thirty  dollars  or 
upwards,  for  two  years,  and  actually  paid  such  rent,  or  shall  for 
himself,  or  on  his  own  account,  have  executed  any  public  annual 
office  or  charge  in  such  city  or  town  during  one  whole  year,  or 
who  shall  have  been  charged  with,  and  paid  his  or  her  share  to 
wards  the  public  taxes  of  such  city  or  town  for  the  space  of  two 
years;"  (excepting  assessments  for  labour  on  the  highway,  a:-; 
hereafter  mentioned)  "  and  every  persoq  who  shall  have  been 
bound  an  apprentice  or  servant  by  indenture,  or  by  any  deed, 
contract,  or  writing  not  indented,  and  shall  in  consequence  of  such 
binding;,  have  served  a  term  not  less  than  two  years  in  such  city 
or  town,  shall  be  deemed  and  adjudged  to  have  obtained  a  legal 
settlement  in  such  city  or  town."  s.  2. 

And  by  the  same  section,  "  All  mariners  coming  into  this  state, 
and  having  no  settlement  in  this  state,  or  in  any  other  of  the. 
United  States  of  America,  and  every  other  healthy,  able-bodied  per- 


332  POOR. 

» 

son,  coming  directly  from  some  foreign  port  or  place  info  this  state, 
shall  be  deemed  and  adjudged  to  b:>  legally  settled  in  the  city  or 
town  in  which  he  or  she  shall  have  first  resided  for  the  '.spare  of 
one  year  :  Provided  always,  That  the  person  or  persons  who  may 
have,  or  hereafter  shall  come  into  the  city  of  New-York,  from 
any  other  state  within  the  United  States  of  America,  shall  not 
be  deemed  and  adjudged  legally  settled  under  this  section,  unless 
the  party  shall  first  prove  to  the  satisfaction  of  the  commissioners 
of  the  alms-house  and  bridewell  of  the  said  city,  that  after  his  or 
her  arrival  therein,  he  or  she,  as  the  case  may  be,  shall  have  ac- 
quired such  requisite* to  constitute  a  settlement,  as  are  necessary 
in  and  by  the  laws  of  such  state,  from  whence  he  or  she  may  have 
.  come  as  aforesaid  : 

u  And  provided  further,  That  the  assessment  and  performance 
of  labour  on  any  highway  in  any  city  or  town,  shall  not  be  con- 
sidered a  tax  within  the  meaning  of  this  act." 

s  Bums' just.  As  to  what  shall  be  a  tenement,  by  the  renting  and  occupation 
of  which  a  settlement  may  be  gained,  it  seems,  that  a  mill  is  a 
tenement  so  as  to  gain  a  settlement. 

2  Term  Rep.  Taking  the  hay  and  aftermath  of  a  meadow  gains  a  settlement ; 
for  there  can  be  no  other  profits  of  the  meadow  but  the  hay-grass 
and  aftermath,  _and  if  a  man  grant  all  the  profits  of  the  ground, 
he  grants  the  land  itself. 

sTerm  Rep.        Renting  a  dairy  will  give  a  settlement:   for  this  is  in  truth  and 

La  *  East'  effect  a  contract  for  a  certain  interest  in  the  land  to  be  enjoyed  in 
a  particular  manner:  but  where  a  dairy  (including  the  cows  and 
their  past'ire)  are  rented,  the  value  of  the  lands  on  which  the 
cows  are  depastured  must  amount  to  the  sum  required  by  the 
act,  exclusive  of  the  value  of  the  cows. 

s  Rums'  Just.       The  value  of  the  tenement,  and  not  the  quantity  of  the  rent,  is 

814.     l  Str.  .    . 

.v  .  tht  material  circumstance. 

.'  Bm-H<,Must.        Under  the  second  clause  of  the  above  section,  an  office  which 

7Q  j 

is  served  but  for  part  of  a  year  at  a  time  does  not  gain  a  settle- 
in  en  t. 

B'irr.  s.  c.  It  i  i  not  necessary  that  the.  office  shtfuld  extend  throughout  the 
whole  town  ;  the  act  only  requires  executing  some  annual  office. 
But  it  must  be  executed  for  the  space  of  a  whole  year;  and  if  in 
the  execution  of  the  office  the  person  becomes  actually  chargea- 
ble, he  may  be  removed. 

i  Ei<;t,283.    •  •     Settlement  by  being  charged  and  paying  taxes  (and  so  it  would 

53t>r'm  ReP'   seem  settlement  by  serving  in  an   office)  is  not  sufficient  without 

also  a  residence  in  the  town;  for  where  a  person   is   rated  in  one 

parish  and  resides  in  another,  he  does  not  gain  a  settlement  by 

paying  such  rate. 

19  vin.sse.  Although  the  rate  be  in  form,  or  in  the  nYanncr  of  making  it,  not 
strictly  legal,  but  void  ;  yet  if  the'party  be  rated  and  pay  to  such  a 
rate,  he  shall  gain  a  settlement. 

s  BurnsMust.       The  same  person  mijsl    both  be  charged  and  pay;  for,  if  one 
774>  person  be  charged,  and  another  pay,  no  settlement  will  be 


POOR.  333 

as  if  the  landlord  be  charged,  and  the  tenant  pay  the  tax,  or  the  son  Burr.  s.  c. 
pay  a  tax  which  has  been  charged  on  the  lather,  the  tonant  in  'J.os.  100. 
one  case,  or  the  son  in  the  other,  will  not  gain  a  settlement. 

Paying  a  county  tax  \viil  not  gain  a  settlement.  sBurns1  Just. 

The  fourth  mode  of  gaining  a  settlement,  pointed  out.  by  the    '  "' 
second  section  of  the  act,  is  by  serving  as  an  apprentice  or  ser- 
vant for  two  years,  in  consequence  of  a  binding. 

In  order  to  gain  a  settlement,  the  binding  must  be  valid,  or  at 
least  voidable;  for  if  void,  it  will  be  of  no  avail. 

A  parol  binding  is  not  sufficient  to  gain  a  settlement  by  appren-    Burr.  s.  c. 
ticeship.     As  to  what  is  requisite  to  constitute  a  valid  binding,   2'2' 
vide  APPRENTICES,  I.  II. 

Where  a  poor  apprentice  is  hound,  and  the  two  justices  give  their  3  Term  Rei>. 
assent  separately  to  the  indenture,  it  is  void,  and  no  settlement 
H  gained  by  serving  under  it. 

Where  an  apprentice  is  bound  out  by  the  overseers  for  a  longer  Burr,  s.c, 
time,  than  is  permitted  by  the  act,  (1  R.  L.  l'3(i.  ante,  p.  17.)  the  in-  2 
denture  is  not  void,  but  only  voidable  by  the  parties  themselves, 
and  a  settlement  may  be  gained  by  serving  under  it. 

Binding  and  serving  will  not  make  a  settlement,  but  the  settle-   sU-Rajm. 
mont  must  be  by  inhabiting  ;  which  cannot  be  but  where  the  party    Uurr.  s.  c. 
lodges.     Therefore  if  an  apprentice  work  with  his  master  in  the   ioj' 
parish  in  which  his  master  lives,   and  lodge  at  nights  in  another, 
his  settlement  is  in  the  parish  in  which  he  lodges;  [or  at  least,  he 
has  no  settlement  in  the  parish  in  which  he  works.] 

Where  a  person  is  bound  apprentice  to  a  master  who  lives  in    s  Bum«'Ju«. 
A.,  and  afterwards,  by  his  master's  consent,  lives  with  another  per-   554!   Burr.' 
son  in  B.,  he  gains  a  settlement  in   the  last  place;  for  a  person   giu' s'rerni 
may  serve  his  master  in  another  parish  or  place;  and  although  he   Hep.  eos. 
serves  another  man,  yet  it  is  by  consent  of  his  master,  and  the 
benefit  accrues  to  his  master.     But  the  assent  of  the  master  must 
be  express,  and  for  the  particular  service. 

If  a  master  assigns   over  his  apprentice,    and  the    apprentice   3num«1Ju$t. 
serves  in  pursuance  of  that  assignment,  he  thereby  gains  a  settle-   |fc.m* 
ment.     The  first  master  has  not  indeed  the  absolute  control  over  6  Tfirm  R<-'P- 
the  apprentice,  so  as  to  compel  him  to  go  to  any  part  of  the  coun- 
try and  serve  another  master  ;  but  if  he  do  serve  a  second  with  the 
consent  of  the  first,  it  is  sufficient;  it  must  be  with  the  consent 
of  the  first  master,  for  it  has  been  decided  that  histnere  know- 
ledge of  such  service  will  not  answer  the  purpose. 

So,  if  the  second  master  consent  that  he  should  serve  a  third,   f,'grr>S-C' 
he.  will  gain  a  settlement  by  such  service. 

By  the  English  poor  laws,  a  settlement  is  gained  by  hiring  and 
service  for  a  year,  which  provision  of  their  laws  has  given  rise  to 
a  great  number  of  adjudications  ;  but  the  only  species  of  service 
which  will  gain  a  settlement  in  this  state  is  that  mentioned  in  the 
second  section  of  the  act,  and  which,  from  the  very  words  of  it, 
only  apply  to  servants  who  are  bound  by  writing. 

"  .!No  person  shall  be  deemed  to  gain,  a  settlement  in  any  city 


•  334  POOR. 

or  town  within  this  state  by  virtue  of  any  purchase  of  any  estate 
or  interest  in  such  city  or  town,  whereof  the  consideration  for 
such  purchase  shall  not  amount  to  the  sura  of  seventy-five  dollars 
lona  Jide  paid,  for  any  longer  or  further  time  than  such  person 
shall  inhabit  in  such  estate,  and  shall  thereafter  be  liable  to  be  re- 
moved to  the  city  or  town  where  such  person  was  last  legally 
settled  before  the  said  purchase  and  inhabitancy  therein."  s.  4. 
Bnrr.s.  c.  A  settlement  of  the  father  in  an  estate  purchased  for  less  than 
seventy-five  dollars  does  not  gain  a  settlement  for  his  children. 

The  fourth  section  of  our  act  is  almost  literally  copied  from 
the  statute  9  Ceo.  c.  7.  The  following  case,  decided  under  that 
act,  contains  principles  so  important  for  the  construction  of  it, 
that  I  shall  state  it  fully. 

StanJof*"  ^°^n  H™6'  t^ie  pauper,  purchased  a  tenement  at  St.  Sidwell's 
uffcuime,  for  twelve  pounds.  He  lived  there  with  his  family,  and  was  rated 
BMTT.S.  c.  an(j  pajj  ^  rates  Afterwards  he  sold  the  said  tenement,  and 
went  with  his  family  to  the  parish  of  Uffculme ;  from  whence 
they  were  removed  to  the  parish  of  St.  Sidwell.  The  sessions 
being  o.f  opinion  that  the  said  John  Hine  did  not  gain  a  settlement 
in  St.  Sidwell,  by  being  rated  and  paying  as  aforesaid,  the  con- 
sideration being  under  thirty  pounds,  (which  answers  to  the  se- 
venty-five dollars  in  our  act,)  did  therefore  vacate  the  said  order. 
It  was  moved  to  quash  the  order  of  sessions.  Ld.  .Mansfield,  Ch. 
J.  delivered  the  resolution  of  the  court.  It  will  first  be  necessary 
to  consider  how  the  law  stood  before  the  making  of  the  9  Geo. 
Now  before  that  act,  no  man  was  removeable  from  his  own,  be 
the  value  of  the  purchase  of  it  never  so  small  and  inconsiderable. 
And  there  were  then  other  ways  also  of  gaining  settlements,  as 
by  serving  a  public  annual  office,'«nd  being  charged  with  and  pay- 
ing a  share  towards  the  public  taxes,  or  levies  and  burdens  of  the 
parish.  But  this  act  was  levelled  only  against  fraudulent  purchases 
of  small  value,  made  in  order  to  gain  settlements.  And  it  declares, 
that  purchasers  of  less  than  thirty  pounds  value,  bona  Jide  paid, 
shall  not  gain  a  settlement  for  any  longer  time  than  the  inhabit- 
ancy thereupon  shall  continue ;  after  which  the  purchaser  shall  be 
liable  to  be  removed  to  his  former  legal  settlement,  prior  to  such 
purchase  and  inhabitancy  upon  it.  And  the  established  construc- 
tion of  this  act  hath  been,  pursuant  to  the  intention  of  the  legis- 
lature, to  prevent  fraudulent  purchases.  And,  therefore,  it  hath 
been  considered  not  to  extend  to  what  are  called  purchases  in 
law,  as  devises,  or  other  such  method  of  coming  to  estates,  be- 
rause  they  are  not  fraudulent ;  whereas  the  present  settlement  is 
daimed  by  being  rated,  and  having  paid  towards  the  public  taxes 
of  the  parish,  which  is  quite  a  different  method  of  gaining  a  set- 
tlement. And  we  are  all  clear,  that  this  act  only  means  to  put 
a  negative  upon  a  person's  gaining  a  settlement  by  making  a  small 
purchase,  with  a  fraudulent  intention  to  gain  a  settlement  there- 
by in  the  parish  where  such  purchase  is  made,  and  that  it  doth 
not  sflect  any  other  method  of  gaining  a  settlement.  And  in- 


POOR.  335 

deed  it  is  but  reasonable,  that  persons  who  have  been  rated  and 
paid  towards  the  public  taxes  and  levies  of  a  parish,  should  re- 
ceive assistance  from  that  parish  whea  they  become  necessitous 
themselves. 

Where   a  man,  in  consideration  of  natural  love  and  affection,  R.V.  intia- 
conveyed  an   estate  to  his  daughter,  without  any  money  consi-   jj^^ 
deration,  this  was  held  sufficient  to  gain  a  settlement  to  herhus-   Burr.s.c. 
band,  and  the  property  being  leasehold,  that  the    husband  was 
not  removeable  after  the  expiration  of  the  term.    This  was  not  a 
purchase  within  the  meaning  of  the  act ;  for  the  word  purchase  is 
not  here  to  be  taken  in  the  largest  extent  of  it,  but  is  confined  to 
cases  where  a  pecuniary  consideration   is   paid.     Indeed,    if  the 
husband  had  paid  a  consideration,  he   would  have  been  a  purcha- 
ser, though  the  conveyance  had  been  made  to  his  wife. 

So,  where  a  father  conveyed  to  his  son  in  consideration  of  na-   3  TermlUp 
tural  love  and  affection  and  ten  pounds,  the   son  gained  a  settle-  25°* 
ment,  there  being  circumstances  to  show  that  ten  pounds  was  not 
the  real  value  of  the  estate. 

Where  a  woman,  before  marriage,  purchased  an  estate  for  less  Burr.  s.  c. 
than  thirty  pounds,  and  after  marriage  her  husband  resided  on  it, 
it  was  held  that  he  gained  a  settlement. 

If  the  purchaser  borrow  the  sum  required  in  order  to  pay  the   Burr.  S.  c*. 
vendor,  and  pays  it  to  him,  and  mortgages  the  premises  to  the 
lender  to  secure  the  money,  he  will  gain  a  settlement. 

Where  an  estate  was  purchased  for  less  than  thirty  pounds,  and   Burr.  s.  C. 
the  purchaser  afterwards  laid  out  money  in  improvements  upon  it,    5i3' 
which,  with  the  original  purchase  money,  amounted  to  above 
that  sum,  it  was  held  that  he  did  not  gain  a  settlement. 

Where  the  consideration  expressed  in  the  deed  was  twenty-   3  Term  Rep 
eight  pounds,  parol  evidence  was   held  admissible  to  prove  that  4 
thirty  pounds  was  the  real  consideration. 

Where  the  husband  has  gone  away  and  left  his  wife,  and  she    Burr.  s.c. 
continues  to  reside  on  his  estate,  she  cannot  be  removed.  413< 

Having  land  in  a  parish  will  not  make  a  settlement,  but  living  in   2Salk.5S4. 
a  parish  where  one  has  land,  will  gain  a  settlement  without  notice. 

In  error  from  the  general  sessions  of  the  peace  of  the  county  of  overseers  of 
Greene.  This  was  an  appeal  from  the  order  of  the  justices  of  o!'rietrior- 
the  town  of  Windham,  in  the  county  of  Greene,  for  the  removal  wimiiiam 

•*•  •  J  n  jo),n9 

oTVuhus  Jlgars,  a  pauper,  from  that  town  to  the  town  of  Blen-  nep.  T. 
heim,  in  the  county  of  Schoharie,  t»  the  general  sessions  of  the 
peace  of  the  county  of  Greene.  In  1777,  Jlgars  came  into  the 
town  of  Woodstock,  iu  that  part  of  it  which  is  now  Windham, 
and  about  twenty  years  ago  purchased  of  Johannes  Hardenbergh 
one  hundred  acres  of  land,  for  the  consideration  of  seventy-five 
dollars,  for  which  land  he  received  a  deed  in  fee  ;  but  the  deed, 
as  the  witness  testified,  was  lost.  The  person  who  drew  the  deed 
stated,  that  the  land  was  described  as  situated  in  the  Hardenber^U 
patent,  in  the  town  of  Woodstock,  and  county  of  Ulster;  but  tlint  in 
i'act  the  land  lav  in  the  town  of  Blenheim,  in  Schoharie  county,  and 


336 

south  of  a  line  mn  for  the  north  line  of  the  Hardenbergh  patent, 
called  Core's  line.  After  the  purchase,  Agars  took  possession  of  the 
land,  which  was  wild  and  covered  with  wood,  and  improved  p:\rt 
of  it  for  two  seasons  ;  but,  excepting  during  that  lime  when  he 
hoarded  in  Blenheim,  he  had  resided  in  that  part  of  Woodstock, 
which  is  now  Windham,  since  1777,  to  the  time  of  the  order  for 
his  removal.  It  appeared  that  at  the  time  of  the  conveyance  to 
Jlgars,  the  land  was  claimed  as  part  of  Due's  manor,  ^nd  half  of 
it  was  included  in  a  lease  to  one  Bartlctt,  and  his  son  testified 
that  he  was  well  acquainted  with  the  bounds,  £ic.  and  that  the 
one  hundred  acres,  purchased  by  Cigars,  lay  within  Due's  manor, 
and  in  the  town  of  Blenheim.  It  was  further  proved,  that  about 
twelve  years  after  Jlgars  purchased  the  one  hundred  acres,  he 
sold  all  his  interest  and  title  in  the  land  for  a  horse  to  Alexander 
Boyd,  who  had  previously  purchased  the  title  of  Due.  The  ap- 
pellants offered  to  prove,  by  the  statutes,  the  boundaries  of  the 
counties  of  Ulster  and  Schoharie,  and  of  the  towns  of  Wood- 
stock, Blenheim  and  Windham,  and  for  that  purpose  also  offered 
in  evidence  the  map  of  the  state  ;  but  this  evidence  was  over- 
ruled by  the  court,  who  adjudged  that  the  pauper's  last  place  of 
legal  settlement  was  in  the  town  of  Blenheim,  in  the  county  of 
Schoharie,  and  confirmed  the  order  of  the  justices.  Per  curiam. 
Here  was  evidently  a  mistaken  purchase.  The  lands  were  sold 
as  part  of  the  Htirdenbergh  patent ;  and  in  fact  they  did  not  lie  in 
that  patent,  and  so  no  estate  or  interest  in  the  town  of  Blenheim 
passed  by  the  deed.  Nor  can  the  act  of  the  p;mper,  in  clearing  a 
part,  be  deemed  a  title  by  possession  in  Blenheim,  sufficient  to 
gain  a  residence.  His  douiicii  was  never  changed,  and  he  only 
went  occasionally  on  the  land  for  a  special  purpose.  The  statute, 
never  meant  that  a  settlement  should  be  acquired  by  purchase,  if 
no  estate  or  interest  known  or  valid  in  law  passed,  and  here  none 
was  intended  to  pass  but  what  was  covered  by  the  Hardenbergh 
patent.  The  purchase  ought  therefore  to  be  disregarded,  and 
the  order  of  the  sessions  quashed. 

Overseersof        Jn  error,  from  the  general  sessions  of  the  peace  of  Chenango 
^overseer's     county.     Two  justices  of  the  peace  of  Norwich  made  an  order 
ofjforwich,     for  t|ie  removal  of  William  Tyler  and  his  wife,  two  poor  person-, 
Kc;>.229.        from  Norwich  to  New  Berlin,  as  the  place  of  their  last  legal  set- 
tlement.    The   overseers   of  the  poor  of  New^Berlin   appejfted 
from  this  order  to  the  sessions.  The  overseer's  of  Norwich  proved 
by  the  pauper,  that  eight  years  before  he  came  to  reside  in  New 
Berlin  with  his  family,  he  paid  taxes;  that  while  he  resided  there 
he  purchased  two   lots  of  land,  one  lot  of  S.  and  one  lot  of  A., 
and  paid  A.  a  wagon  worth  seventy-five  dollars,  and  a  horse  to  S. 
worth  eighty  dollars  ;  that  he  was  to  give  S.  two  hundred  and  fifty 
dollars  for  the  lot,  house  and  shop,  tools,  fcc.     The  tools  were 
worth  about  fifty  dollars  ;  and  that  he  mortgaged  the  lot  to  S.  for 
two  hundred  dollars.     The  deed  and  mortgage  were  registered, 
and  it  appeared  that  the  consideration  expressed  in  the  dei'«l  v^..-.? 


POOR.  337 

two  hundred  and  fifty  dollars.  The  appellants  offered  to  prove,  by 
parol  evidence,  that  the  lil'ty  dollars  were  not  paid  by  Tyler  aa  part 
of  the  consideration  fur  the  land,  bttt  for  the  tool?,  &-c.  and  that 
the  land  was  mortgaged  to  S.  for  the  whole  consideration  money, 
being  two  hundred  dollars.  This  evidence  was  objected  to  and 
overruled  by  the  court.  The  order  of  removal  was  ailirmed  by 
the  sessions,  with  cobls. 

Per  curia  m.  The  purchase  of  an  estate,  in  a  town  will  not 
gain  a  settlement  for  any  longer  time  than  the  purchaser  inhabits 
such  estate,  unless  the  consideration  for  the  purchase  amounts  to 
seventy-five  dollars  bona  fide  paid.  The  overseers  of  the  poor 
of  the  town  of  New  Berlin  offered  to  prove,  that  though  the  pau- 
per had  purchased  a  lot  in  that  town,  for  the  consideration  01 
two  hundred  and  fifty  dollars,  and  had  mortgaged  the  lot  back  to 
secure  the  payment  of  two  hundred  dollars,  yet  that  in  fact  he 
had  not  paid  any  part  of  the  consideration,  and  the  evidence  wu.s 
rejected.  The  overseers  of  New  Berlin  were  clearly  entitled  to 
show  this  fact,  and  were  not  estopped  from  showing  it  by  the  deetl 
or  mortgage,  to  which  they  were  not  parties.  Such  a  conclusion 
would  be  unjust,  by  enabling  a  person  at  any  time  to  procure  ;i 
settlement,  by  a  purchase  without  payment,  and  so  to  defeat  thti 
provisions  of  the  act.  It  is  a  general  rule,  that  parties  and  privies 
are  estopped  from  contradicting  a  written  agreement  by  parol 
proof;  but  the  rule  does  not  extend  to  strar.^rrs,  TV  ho  have  an  in- 
ti.rust  in  investigating  and  knowing  the  real  truth  of  the  case. 
The  judgment  of  the  court  below  must  be  reversed,  and  the  ordar 
of  the  two  justices  quashed. 

"  If  any  person,  other  than  those  herein  before  mention- 
ed, coming  into  any  city  er  town,  shall,  within  forty  days  af- 
ter such  person's  coming  into  such  city  or  town,  deliver  a  notice 
in  writing,  to  any  two  overseers  of  tile  poor  of  such  city  or  town, 
into  which  such  person  shall  so  come  to  reside,  of  the  house  oip 
place  of  his  abode,  and  the  number  and  names  of  his  family,  if 
he  shall  have  any,  which  notice  such  overseers  of  the  poor  are 
hereby  required  to  cause  to  be  registered,  within  forty-eight  hours 
after  the  receipt  thereof,  in  the  book  kept  in  such  city  or  town, 
lor  the  accounts  of  the  poor;  and  in  case  the  overseers  of  the 
poor  of  such  city  or  town  shall  ntot,  within  twelve  months  after 
such  notice,  cause  such  person  to  be  removed  out  of  such  city  or 
town  in  the  manner  hereinafter  mentioned ;  then,  and  in  su*h  case, 
the  person  so  giving  notice  as  aforesaid,  shall  be  deemed  and  ad- 
judged to  be  legally  settled  in  such  city  or  town."  s.  5. 

"  If  any  overseer  of  the  poor  shall  refuse  or  neglect  to  register, 
or  cause  to  be  registered,  such  notice  in  writing  as  aforesaid,  in 
such  time  and  manner  as  aforesaid,  he  shall,  for  every  such  refu- 
sal or  neglect,  forfeit  the  sum  of  five  dollars,  to  the  use  of  the 
party  aggrieved,"^  be  recovered,  with  costs  of  suit,  in  any  court 
having  cognisance  thereof."  s.  (j.  , 

A  greater  number  of  cases  might  have  been  added  from  the 
English  books  upon  the  law  of  settlements;  hut  it  is  with  diffi- 

r  is  i 


iiich  are  here  inserted 

the  reader;  the   language,   as  well  as  the  substance  of  our  poor 
Jaw.  differs  in  man>  from  the  En;:!  c  decisions 

in  our  uwn  courts  not  being  numerous-,  it  is  difficult  to  determine 
how  far  the  English  cases  would  apply  }.».-..     Fur  t;- 

;iave  been  sparingly  introduced,  and  will  have  been  priuci- 
paliy  confined  to  the  head  of  settlement,  the  most  difficult  branch 

s  subject.     The  remaining  parts  of  the  act  do  not  require  so 
much  illustration,  and  therefore  I  shall  dj=n-gard  thuu  in  the  re- 
e  of  this  title. 

III.  Rtnwral. 

overseer  of  the  poor  of  any  city  or  town  shall  hart 
n  to  believe  that  any  stranger,  who  shall  have  come  to  re- 
side io  such  city  or  town,  and  who  shall  not  have  obtained  i. 
••ment  therein,  is  likely  to  become  chargeable  to  such  • 
.  such  overseer  shall  apply  to  any  two  justices  of  the  peace  01 
such  city,  or  of  the  county  in  which  such  town  shall  lie,  and  inform 
them  thereof;  and  the  said  justices  being  so  or  otherwise  informed, 
or  suspecting  such  stranger  to  be  of  insufficient  ability,  or  likely  to 
become  a  charge  to  such  city  or  town,  are  hereby  authorized  and 
required  to  i?sue  their  warrant  to  a  constable  of  such  city  or 
town,  thereby  commanding  him  to  bring  such  stranger  befor^s 
them,  at  such  time  and  place  as  they  in  their  said  warrant  shall 
for  that  purpose  appoint  ;  and  the  said  justices  shall  examine 
every  stranger  so  brought  before  them,  and  any  other  person 
whom  they  may  think  necessary,  upon  oath,  relating  to  the  abi- 
and  last  place  of  legal  settlement  of  such  stranger  ;  and  if, 
upon  such  examination,  the*  said  justices  shall  find  such  stranger 
likely  to  become  a  charge  to  such  city  or  town,  they  shall  order 
and  direct  such  stranger,  by  a  certain  day.  to  remove  to  the  place 
of  his  former  settlement,  and,  on  neglect  or  refusal  to  comply  with 
the  said  order,  the  said  justices  shall  issue  a  warrant,  under  their 
hands  and  seals,  directed  to  any  constable  of  such  city  or  town, 
who  is  hereby  required  and  commanded  to  execute  such 
rant,  thereby  commanding  him  to  convey  or  transport  such  stran- 
~'T  to  the  constable  of  the  next  city,  or  first  town  in  the  adjoining 
county,  or  if  within  the  same  county,  to  the  town  where  the  pau- 
per was  last  legally  settled,  through  which  such  stranger  shall  have 
been  suffered  to  wander  uoapprehemled,  and  -so  from  constable 
!o  constable,  or  in  such  other  manner,  by  the  nearest  and  most 
-nie&t  route  as  the  said  justices  shall  think  fit  to  direct,  to  the 
place  of  legal  settlement  of  such  stranger,  if  the  same  shall  be 
within  this  stale  ;  or  in  case  it  shall  appear  that  the  said  pauper 
first  came  into  this  state  through  ihe  city  of  New-York,  and  it" 
shall  not  appear  that  the  said  pauper  has  acquired  a  s- 
this-  state,  then,  and  in  such-case,  it  sh-il!  oe  lawful  for  the  sa. 
tices  to  direct,  by  the  said  warrant,  that  the  said  pauper  be 


POOR.  339 

milled  from  constable  to  constable,  or  otherwise,  to  the  city  of 
JVew-York."  s.  7. 

From  the  return  of  the  certiorari  directed  to  the  court  of  gone-  s'.wan. 
ral  sessions  in  the  county  of  Ulster,  it  appeared  that  an  order  had    jj'"mnkat- 
Jn't  it  given  by  two  justices  of  the  peace,  for  the  removal  of  Sarah  >n^,  i  John*. 
Hide,  a  pauper,  from  the  town  of  Mamaknting  to  the  town    of 
Shawangunk.     The  order  recited  that  it  was  made  on  the  com- 
plaint of  the  poor  masters  of  the  town  of  Mamakating:  that  the 
ju?ticf-s,   "  after  examining  the  said   Sarah,  as  well  under  oath  as 
otherwise,  could  not  discover  that  she  had  any  legal  settlement 
or  place  of  residence  in  any  part  of  the  world  whatever  ;  that  if 
suflered  to  remain,  she  was  likely  to  become  chargeable  to  the 
town,  and  that  the  place  she   last  came  from   was  the  town  of 
Shawangunk."  From  this  order  the  overseers  of  Shawangunk  ap- 
pealed to  the  general  sessions  of  the  peace,   by  whom  it  was 
confirmed. 

The  plaintiffs  in  error  moved  to  quash  the  order:  1.  Because 
it  was  stated  to  have  been  made  on  the  complaint  of  the  poor 
masters,  when  no  officers  of  that  name  are  known  in  law.  2.  Be- 
cause it  requires  the  overseers  of  the  town  of  Shawangunk  to  re- 
ceive the  pauper,  See.  without  adjudging  that  she  was  legally  set- 
tled in  that  town. 

Per  curium.  The  justices  may  act  on  information  obtained 
from  any  source,  or  on  their  own  suspicion.  The  order  of  the 
two  justices  states,  that  they  do  not  discover  that  the  pauper  had 
any  legal  settlement  in  this  state  ;  and  it  expressly  finds  that  she 
came  from  Shawangunk.  This  is  a  sufficient  adjudication  of  the 
fact  to  authorize  them  to  send  her  back  to  that  town.  Motion 
denied. 

I>y  the  return  to  the  certiorari  in  this  cause,  directed  to  the  ge-  Ovwseen  of 
neral  sessions  of  the  peace  for  the  county  of  Orange,  it  appeared  oveneenof* 
'  that  an  order  had  been  made  by  two  justices  of  the  town  of  New-  J^uskB.e  * 
burgh  for  the  removal  of  one  Thomas  Hart,  a  pauper,  from  that  330. 
place  to  the  town  of  Plattekill ;  and  that  an  appeal   had   been 
made  from  this  order  to   the   court   of  general   sessions  of  the 
peace,  by  xvhom  it  was  quashed,  with  costs.     A  few  days  bsforu 
the  order  cf  removal  was  made,  the  pauper  came  to  Newburgh,     • 
and  staid  a  day  or  two,  when  he  was  sent  by  one  of  the  overseers 
of  Newburgh  to  Shawangunk,  from  whence  he  was  immediately 
sent   back  by  a   pass  warrant  from  two  justices  of  that  town  to 
Newburgh.      He  was  then  removed  by  the  order  now  in  question 
to  Plattekill.     About  seven  years  before,  he  had  resided  at  that 
town  with  his  family  :  he  left  that  place  afterwards,  and   it  did 
not  appear  that  he   had  any  permanent  residence   any  where. 
The  order  of  removal  recited,  that  the  pauper  had  no  legal  settle- 
ment at  Newburgh,  and  had  produced  nj>  certificate  of  a  settle- 
ment elsewhere,   and  that  he  was  likely  to  become  chargeable, 
&c.  that  the  paupor  being  deranged  in  his  mind,  the  justices,  on 
the  oath?-  of  witn"":e?.  and  due  proof  made  to  them,  adjudge  the 


3-1-0 

above  facts  to  be  true,  and  that  the  last  place  of  residence  of  the 
pauper  was  at  Pfattekill,  but  they  are  unable  to  learn  the 
place  of  his  last  legal  settlement,  k.c. 

To  this  order  of  sessions  two  exceptions  were  taken  by  the 
plaintiff  in  error.  1.  That  on  the  original  order,  no  appeal  would 
lie  to  the  sessions.  That  it  was  a  mere  pass  warrant,  to  send  the 
pauper  from  town  to  town.  Where  a  pauper  is  a  mere  vagrant, 
or  transient  person,  without  any  place  of  legal  settlement,  he  is 
taken  and  cent  from  town  to  town,  by  such  an  order,  but  no  ap- 
peal will  lie  upon  it.  2.  That  the  sessions  awarded  costs.  Per 
curiam.  The  order  was  properly  quashed  by  the  sessions,  for 
there  was  no  evidence,  nor  any  adjudication  that  the  pauper  had 
a  legal  settlement  at,  or  came  last  from  Plattekill.  By  a  liberal  con- 
struction of  the  twentieth  section  of  the  act,  the  sessions  are  au- 
thorized to  allow  costs  in  such  cases.  The  order  of  the  sessions 
must  be  affirmed,  and  the  appellants  must  pay  the  costs  of  this 
appeal. 

Overseers  of  A  rule  was  granted  by  the  court  in  May  term,  requiring  the 
v?ovtr"m-s  cour*  °f  general  sessions  of  the  peace  of  Albany  county  to  show 
ofGuiider-  cause  why  a  mandamus  should  not  issue,  commanding  them  to 
s  Joiins. Rep.  hear  and  adjudicate  on  an  appeal  to  the  said  sessions  from  an  or- 
4L2>  der  of  removal,  &tc  At  the  last  term  the  court  of  sessions  made 

a  return,  that  at  a  court  of  sessions,  held  the  22d  of  February 
last,  an  appeal  by  the  overseers  of  the  poor  of  Niskayuna,  against 
the  overseers  of  Guilderland,  from  an  order  of  removal  made  by 
two  justices  of  Albany  county,  residing  in  Guilderland,  whereby 
Jacob  Clute  and  his  wife  were  removed  to  Niskayuna,  was  heard. 
The  order  appealed  from,  dated  the  2d  March,  1810,  under  the 
hands  and  seals  of  the  justices,  and  stated  (upon  the  information 
of  the  overseers  of  the  poor  of  the  town  of  Guilderland)  that. 
Clute  and  wife  had  come  to  reside  in  that  town,  not  having  obtain- 
ed a  legal  settlement  therein,  nor  produced  any  certificate  of 
their  settlement  elsewhere,  and  that  they  were  likely  to  become 
chargenble,  &tc.  that  the  justices,  upon  due  proof  made  thereof, 
and  on  the  examination  of  the  said  Clute  and  his  wife,  upon  oath, 
adjudged  the  facts,  as  stated,  to  be  true  ;  and  that  upon  such  ex- 
amination and  proof,  not  being  able  to  discover  where  was  the 
Just,  place  of  legal. settlement  of  the  said  Clute  and  wife,  but  that 
Clute  was  born,  and  had  once  been  legally  settled  in  Niskayuna, 
;md  that  he  had  lived  a  number  of  years  in  the  town  of  \Vater- 
vlief,  in  the  county  of  Albany,  but  whether  he'had  gained  a  legal 
settlement  in  that  town,  they  could  not  discover;  but  they  had 
discovered,  upon  examination  and  proof  upon  oath,  and  therefore 
adjudged,  that,  the  said  Cluie  came  last  from  the  town  of  Water- 
viii-t,  and  that  he  married  his  wife  in  the  said  town  of  Guilderland. 
And  they  having  been  ordered,  by  a  certain  d:iy,  then  past,  to  re- 
move to  the  place  of  their  former" settlement,  and  having  neglect- 
«•  d  and  refused  to  do  so,  the  justices  directed  and  commanded  the 
"to  convey  apd  transport  C'u'f  and  his  wife  to  the 


POOR.  341 

U>\vn  of  Watervliet,  being  the  town  from  whence  they  last  rame, 
;intl  to  deliver  them  at  the  house  of  a  constable  of  that  town,  who 
was  also  required  to  receive  them,  and  convey  them  to  the  next 
constable,  and  so,  from  constable  to  constable,  until  they  should 
be  transported  to  their  last  place  of  legal  settlement,  if  such  can 
be  found  in  this  state."  It  was  admitted  that  Watervliet,  to 
which  town  the  paupers  were  removed,  had  sent  them,  with  the 
order,  to  Niskayuna.  A  preliminary  objection  was  made  by  the 
respondents  before  the  court  of  sessions,  that,  as  the  order  did 
not  remove  the  paupers  to  Niskayuna,  nor  make  any  adjudica- 
tion, that  town  was  the  last  place  of  their  legal  settlement,  the 
overseers  of  Watervliet  only,  and  not  those  of  Niskayuna,  could 
sustain  an  appeal  from  the  order,  if  any  could  be  sustained.  Upon 
hearing  the  counsel  on  both  sides,  the  court  of  sessions  deter- 
mined that  the  preliminary  objection  was  well  taken,  and  there- 
fore dismissed  the  appeal. 

Per  curiam.  The  overseers  of  Niskayuna  show  no  merits  to 
entitle  them  to  the  present  motion.  The  order  of  the  justices 
contained  an  adjudication  that  the  paupers  last  came  from  the 
town  of  Watervliet,  and  it  ordered  the  constable  to  convey  them 
thither,  and  there  the  order  had  spent  itself.  It  did  not  designate 
any  other  place  to  which  the  paupers  were  to  be  removed,  either 
within  or  without  the  state ;  and  it  would  be  equally  absurd  and 
oppressive  to  suppose  that  it  had  any  ulterior  force,  when  it  left 
every  thing  at  large  to  constables,  without  any  certainty,  or  adju- 
dication, as  to  place  or  object.  Tne  order,  as  to  every  thing  that 
was  to  be  done  after  the  paupers  had  been  removed  to  Water- 
vliet, was  void  for  uncertainty.  Constables  are  mere  ministerial 
officers.  They  cannot  be  roaming  over  the  state  with  paupers, 
seeking  for  some  place  of  settlement.  If  the  pauper  is  to  be  sent 
out  of  the  state,  the  order  of  the  justices  must  at  least  prescribe 
the  route.  It  ought  not  to  be  left  to  the  discretion  of  constable 
upon  constable.  This  would  be  repugnant  to  good  order,  to  the 
humanity  due  to  the  unfortunate  pauper,  and  to  the  spirit  of  the 
act,  which  declares  that  the  stranger  shall  be  conveyed  from  con- 
stable to  constable,  "  or  otherwise,  as  such  justices  shall  direct." 
The  justices  must  therefore  make  a  special  direction  in  the  case, 
and  here  was  none  made.  The  town  of  Niskayuna  was,  there- 
fore, not  bound  to  receive  the  paupers,  without  a  new  order,  and 
if  that  town  did  receive  them,  it  was  not  by  the  authority  of  the 
order,  but  in  their  own  wrong.  The  sessions  were  therefore  cor- 
rect in  deciding";that  the  overseers  of  Niskayuna  had  no  right  to 
appeal  from  the  order.  Motion  denied. 

On  the  return  of  a  certiorari  to  the  general  sessions  of  the  pence    Ovryj.r'™  ?f 
in  Orange  county,  the  following  facts  appeared.      A  pauper  was.  overseen of 
removed  from  Bloomingrove  to  the  town  of  Southfield,  by  an  or-    p^0"1"1" 
der  of  removal,  under  the  hands  and  seals  of  two  justices  of  the   aJohns.Uc; 
peace,  dated  the  20th  of  June,  180.5.      On  an  appeal  from  this  or- 
der it  was  confirmed  by  the  general  sessions  of  the  peace  in 


POOR. 

Orange  county.  It  appeared  that  on  the  23d  of  November, 
two  justices  of  the  peace  of  Suffolk  county  made  an  order  for  the 
removal  of  the  same  pauper,  from  the  to  ;.n  of  Riverhead  to 
Bloomingrove  ;  and  she  was  accordingly  removed  in  February, 
18(H,  and  delivered,  with  a  copy  of  the  order,  to  the  overseers  of 
the  poor  of  Bloomingrove,  who  received  and  maintained  her  as  a 
pauper  of  that  town  until  the  20th  of  June,  1805.  It  appeared 
further,  that  the  same  justices  of  Suffolk,  on  the  10th  of  June, 
1805,  issued  a  supersedeas  of  this  former  order,  directed  to  the 
overseers  of  Bloomingrove,  declaring  their  former  order  to  be 
quashed,  obsolete,  null,  andtoid. 

Per  curiam.  The  justices  of  Riverhead  could  not  supersede 
the  order  of  removal  granted  by  them  in  November,  1803,  after 
the  pauper  had  been  removed,  settled,  and  maintained  in  Bloom- 
ingrove near  twenty  months  by  virtue  of  that  removal,  and  when 
no  appeal  had  been  made  from  that  order.  The  order  of  the 
sessions  must  be  reversed. 

"  If  any  inhabitant  of  this  state  shall  receive  or  entertain  in  his 
dwelling  house,  out  house,  or  family,  for  the  space  of  fifteen  days, 
any  person  who  hath  not  gained  a  settlement  in  some  city  or 
Invrn  within  this  state,  and  shall  not,  within  the  time  aforesaid, 
give  notice,  in  writing,  to  one  of  the  overseers  of  the  poor  of  such 
city  or  town,  of  the  name,  quality,  condition,  and  circumstances  of 
the  person  so  entertained,  according  to  the  best  knowledge  of 
'such  inhabitant,  every  such  inhabitant  shall,  for  every  such  of- 
fence, forfeit  the  sum  of  five  dollars,  to  be  recovered,  with  costs 
of  suit,  before  any  .court  having  cognisance  thereof,  by  any  per- 
son who  shall  sue  for  the  same  ;  one  half  of  which  forfeiture,  when 
recovered,  to  be  paid  to  the  overseers  of  the  poor  of  such  city  or 
town,  and  the  oilier  half  to  the  person  who  shall  sue  for  the  same 
aforesaid  :  .fold  further,  if  the  person  so  entertained  as  aforesaid 
shall  have  remained  in  any  city  or  town  longer  than  the  term  of 
forty  flays,  then  it  shall  be  lawful  for  any  two  justices  of  the  peace 
of  such  city,  or  of  the  county  in  which  such  town  shall  be,  to  cause 
such  .of  the  inhabitants  of  such  city  or  town  who  shall  have  so  en- 
i<-rtained  such  stranger  during  the  term  of  fifteen  days,  without 
giving  information  thereof  as  aforesaid,  to  be  brought  before  them, 
and  s-!fh  inhabitants  shall  enter  into  bond  to  the  overseers  of  the 
poor  of  such  city  or  town,  and  their  successors,  in  the  sum  of 
two  hundred  and  fifty  dollars,  conditioned  that  such  stranger 
.shall  not  become  a  charge  to  such  city  or  town  ;  and  in  case  any 
of  the  'persons  who  shull  have  entertained  such  stranger  as  afore- 
said, being  in  the  opinion- of  such  justices  of  the  peace  of  suffi- 
cient ability,  shall  refuse  to  become  bound  as  aforesaid,  it  shall 
he  lawful  for  the  said  justices  of  the  peace,  by  warrant  under  their 
hands  and  seals,  directed  to  any  constable  of  such  city  or  town, 
10  cause  such  person  to  be  committed  to  the  common  jail  of  such 
»:ify,  or  of  the  county  in  which  such  town  shall  be,  there  to  ve- 
_ii);un  until  HUC'I  uerson  shall  consent  and  become  bound  as  afore- 


POOR. 

said  ;  but  ii'  the  person  so  entertaining  such  stranger  shall  not,  in 
;!ie  opinion  of  the  said  justices,  be  of  sufficient  ability  to  become 
bound  as  aforesaid,  or  if  the  said  justices  shall  not  think  fit  to  take 
such  bond,  then  they  shall  cause  such  stranger  to  be  conveyed 
from  constable  to  constable,  in  manner  aforesaid,  until  he  shall 
be  transported  to  the  place  of  his  or  her  last  settlement,  if  within 
this  state."  s.  8. 

In  error  on  certiorari  from  a  justice's  court,  .Jllalbelt  and  Tripp  rmnse  v. 
sued  Crouse  before  the  justice,  and  declared  against  him,  that  he,  and>Trlnp 
without  any  lawful  authority,  brought  into  the  town  of  Washing;-  Ovenwior 

,,-,;•  D  u      •  the  Poor,  £c . 

ton  one  .William  Brown,  a  pauper,  having  no  settlement  there,  ujohn» 
or  within  this  state  ;  that  tiie  pauper  fell  sick,  and  was  supported  ller«*67- 
by  them,  the  plaintiffs,  as  overseers,  fcc.  under  an  order  of  two 
justices  of  the  peace,  until  the  death  of  the  pauper,  at  the  ex- 
pense of  about  twenty  dollars  ;  and  that  the  defendant  well  knew, 
&e.  the  facts  set  forth.  Plea,  general  issue.  The  return  stated, 
that  the  plaintiffs  proved  all  the  material  allegations  in  their  de- 
xlaration.  The  defendant  offered  to  prove  that  Mablftt,  one  of 
the  plaintiffs,  had  said  that  there  was  property  enough  left  by 
Brown  after  his  death,  in  the  town  of  Washington,  to  defray  all 
the  expenses  ;  but  'this  evidence  being  objected  to,  was  over- 
ruled by  the  justice,  and  a  judgment  given  for  the  plaintiffs  for 
twenty  dollars,  with  costs.  Per  curium.  This  judgment  must  IK-. 
reversed.  There  is  no  principle  of  the  common  law  on  which 
the  action  can  be  maintained.  The  statute  for  the  relief  and  set- 
tlement of  the  poor,  subjects  to  a  penalty  any  inhabitant  who 
shall  receive  and  entertain,  for  the  space  of  fifteen  days,  any  per- 
son who  has  not  gained  a  settlement  in  some  city  or  town  in  the 
state,  without  giving  notice  thereof,  in  writing,  to  one  of  the 
overseers  of  the  poor,  i-cc.  But  this  action  was  not  brought  on 
the  statute,  and  cannot  be  sustained. 

By  sect.  9.  a  constable  transporting  a  pauper  is  to  be  allowed 
for  his  services  according  to  the  discretion  of  the  supervisors  of 
the  county,  and  the  money  for  that  purpose  is  to  be  raised  in  the 
same  manner  as  the  other  contingent  charges  of  the  county. 

"  If  any  JHTSOII  be  removed  by  virtue  of  this  act,  from  one  city 
or  town  to  another,  within  this  state,  the  overseers  of  the  poor  oi' 
the  city  or  town  to  which  the  said  person  shall  be  so  removed, 
are  hereby  required  to  receive  the  said  person,  and  if  they,  or 
any  of  them,  shall  refuse  or  neglect  so  to  do,  the  overseer  so  re- 
fusing or  neglecting,  shall,  if  thereof  convicted  by  the  oath  of  two 
witnesses,  forfeit  and  pay  for  each  offence  the  sum  of  twenty-five 
dollars,  to  the  use  of  the  poor  of  the  city  or  town  from  which  such 
person  was  so  removed :  Provided  always,  That  no  person,  nor 
any  child  belonging  to  such  person,  shall  gain  a  settlement  in  the 
city  or  town  to  which  he  or  they  shall  be  so  removed,  but  his  or 
their  settlement  shall  remain  as  before  such  removal."  s.  10. 

'"-If  any  poor  person  shall  remove,  or  come  otit  of  any  city  or 
town,  where  he  is  or  shall  ha  legally  settled,  into  any  other  cijy 


POOR. 

or  town  within  this  state,  and  shall  he  taken  sick  or  lame,  so  I  ha*. 
such  person  cannot,  be  conveniently  removed  hack  to  the  place 
of  his  last  legal  settlement,  then  the  overseers  of  the  poor  of  such 
city  or  town,  into  which  such  poor  person  shall  come  as  afore- 
said, or  one  of  them,  shall  give  notice,  in  writing,  to  the  overseers 
of  the  poor  of  the  city  or  town,  out  of  which  such  poor  person 
ah  !'  have  corneas  aforesaid,  of  the  name,  condition  and  circum- 
stances of  such  person,  and  request  s,uch  overseers  of  the  poor,  or 
on-j  of  them,  to  take  care  of,  relieve  and  maintain  such  sick  or 
lame  person  during  his  illness,  and  also  to  provide  for  his  funeral 
if  he  should  die  there  ;  and  if  any  such  overseer  of  the  poor, 
having  notice  as  aforesaid,  shall  neglect  or  refuse  so  to  do,  "then  it 
shall  be  lawful  for  any  two  justices  of  the  peace,  of  the  city  or  of 
the  county  in  which  such  town  shall  be,  where  such  poor  person 
had  his  last  legal  place  of  settlement,  upon  complaint  made  to 
them,  to  cause  all  such  sums  of  money  as  shall  be  necessarily  ex- 
pended in  the  maintenance  of  such  poor  person  in  his  sickness  or 
lameness,  or  on  his  funeral,  to  be  levied  by  distress  and  sale  of  the 
goods  and  chattels  of  the  said  overseer  of  the  poor,  so  neglecting 
or  refusing  to  take  care  of  and  provide  for  such  poor  person,  as 
aforesaid,  after  such  notice  given  to  him  or  them  as  aforesaid,  by- 
warrant  under  the  hands  and  seals  of  such  justices,  who  are 
hereby  authorized  and  required  to  issue  the  same,  directed  to 
some  constable  of  the  city  or  town  where  such  overseer  of  tin-, 
poor  shall  reside,  returning  the  overplus,  if  any  there  be,  after 
deducting  all  lawful  costs  and  charges  of  such  sale,  as  aforesaid  ; 
and  such  sums  of  money,  so  recovered,  shall  be  paid  to  the  over- 
seers of  the  poor,  or  to  one  of  them,  of  such  city  or  town  where 
such  poor  person  shall  be  su-k,  lame,  or  die,  as  aforesaid."  3.  1C. 
Vuortiis  v.  This  case  came  before  the  court,  on  a  certiorari  directed  to  twt 

7  jdhns.'nep.  justices  of  the  peace.     One  Carril  came  into  the  town  of  Rich- 
89>  field,  in  the  county  of  Ofsego,  and  suon  after  became  wounded 

and  disabled,  so  as  to  be  incapable  of  being  removed  to  his  sup- 
posed legal  place  of  settlement  in  Charleston,  in  the  county  of 
Montgomery,  upon  which  the  overseers  of  the  poor  of  Richfield 
gave  notice  of  these  facts  to  J^oorhis,  one  of  the  overseers  of  the 
poor  of  Charleston,  requiring  him  to  relieve  the  pauper  during  his 
illness,  which  he  neglected  and  refused  to  do.  The  overseers  oi 
the  poor  of  Richfield  expended  three  hundred  and  thirty-four 
dollars  and  fifteen  cents,  in  maintaining  the  pauper,  after  notice 
toVoorhis.  These  allegations  being  made  before  two  justices  of 
the  peace  of  Montgomery  county,  and  proved  to  them  on  oath, 
they  issued  their  warrant,  ordering  that  sum  to  be  made,  by  public 
sale  of  the  goods  and  chattels  of  Voorhis.  In  their  return  to  this 
certiorari,  the  two  justices  set  forth  their  warrant,  which  stated 
that  Whipple  and  Hawes,  overseers  of  the  poor  of  Richfield, 
complained,  and  gave  them  th"  said  justices  to  be  informed  of  the 
facts  above  mentioned,  "  which  said  complaint  and  allegation  were 
proved  and  verified  by  oath  before  them." 


POOR.  345 

for  onuses  of  quashing  the  warrant  of  distress  : 
i.  That  no  adjudication  had. been  made,  that  the.  pauper  was  last 
iegally  settled  in  Charleston  before  he  had  notice  to  provide  for 
him:  2.  That  it  docs  not  appear  from  the  warrant,  that  the  jus- 
tices had  legal  evidence  that  the  pauper's  last  legal  place  of  settle- 
ment was  in  Charleston:  3.  That  it  does  not  appear  by  the  war- 
rant that  he  had  any  notice  of  the  complaint  mode  to  the  justices. 

To  this  assignment  the  overseers  of  the  poor  of  Richfield 
pleaded,  that  on  the  pauper's  recovering  from  his  wounds  and 
sickness,  so  as  to  he  capable  of  being  removed,  an  order  wa  i 
made  by  two  justices  of  the  peace,  in  pursuance  of  the  act,  ad 
judging  the  pauper's  last  legal  settlement  to  be  in  Charleston  ; 
which  order,  on  appeal  to  the  general  sessions  of  the  peace  for  tho 
county  of  Otsego,  was  confirmed.  To  this  plea  there  was  a  de- 
murrer and  joinder. 

Per  curiam.  The  inducement  to  the  enacting  the  sixteenth  sec- 
tion of  the  act  for  the  settlement  and  relief  of  the  poor,  was  to 
relieve  a  town  where  a  pauper  happened  to  be  taken  sick  or  lame, 
so  as  not  to  be  able  to  be  removed  back  to  the  place'of  his  last  le- 
gal settlement;  but,  in  providing  for  this  summary  relief  to  the  town 
actually  burthened  with  the  pauper,  it  presupposes  that  the  pho-j 
of  his  last  legal  settlement  has  been  ascertained  according  to  the 
provisions  of  tho  seventh  section  ;  to  wit,  by  an  order  of  two  jus- 
tices, making  an  adjudication  upon  the  fact,  after  having  them- 
selves examined  the  pauper  on  oath.  To  give  the  sixteenth  sec- 
tion any  other  construction,  would  lead  to  great  abuse  a»U  op- 
pression. Towns  might  be  charged,  if  the  manner  of  proceed- 
ing in  this  case  is  sanctioned,  with  the  payment  of  large  sums  of 
money  unjustly,  and  without  the  examination  of  the  pauper  him- 
self, which  is  essentially  requisite  to  find  out  his  last  legal  settle- 
ment. This  not  having  been  done  in  this  case,  the  warrant  issued 
illegally.  It  has  been  contended,  that  the  subsequent  proceedings 
made  the  warrant  valid.  The  cases  referred  to  contain  no  such 
doctrine.  The  warrant  was  good  or  bad  when  it  issued,  and 
cannot  be  aided  by  what  took  place  afterwards.  Warrant  quashed. 
.  "  It  shall  be  lawful  to  remove  any  slave  who  shall  have  left  his 
master,  or  shall  have  wandered  from  town  to  town  to  the  place 
of  the  settlement  of  his  master,  in  the  manner  directed  by 
the  seventh  section  of  this  act,  if  such  place  of  settlement  can 
be  found  in  this  state,  and  if  none  such  can  be  found,  then  to 
the  place  from  whence,  such  slave  shall  have  last  come,  in  tho  man 
ner  directed  by  the  said  section."  s.  33. 

IV.  Certificate. 

'"•  If  any  person  who  shall  think  proper  to  remove  out  of  any 
city  or  town  within  this  state,  into  any  other,  there  to  inhibit  or 
reside,  and  shall,  at  the  same  time,  procure  and  deliver  to  the 
ovors-eri  of  the  poor  of  the  city  or  town  where  such  person  shall 

[   44-  ] 


.546  TOOK. 

so  come  to  inhabit  or  reside,  or  to  any  one  of  them,  a  certificate  un- 
der the  hands  and  seals  of  the  overseers  of  the  poor,  or  of  -\uy  two 
of  them,  of  the  city  or  town  of  such  person's  last  legal  settltment, 
attested  by  two  or  more  credible  witnesses,  thereby  tiwning  or 
acknowledging  the  person  mentioned  in  such  certificate  to  be  an 
inhabitant  leg.illy  settled  in  the  city  or  town  mentioned  in  such 
certificate,  which  certificate  shall  be  either  acknowledged  by  the 
overseers  of  the  poor  giving  the  same,  or  shall  be  duly  proved  by 
the  witnesses  who  shall  have  attested  the  execution  thererf.  or 
OIK-  of  them,  before  any  justice  of  the  peace  of  the  city  or  of  ihe 
county  wherein  the  town  from  whence  any  such  certificate  shall 
come  shall  be,  and  shall  be  approved  of  and  subscribed  by  such 
justice  of  the  peace,  then  it  shall  be  lawful  for  every  such  person, 
with  his  family,  if  any,  upon  the  delivery  of  such  certificate  as 
aforesaid,  to  remain  in  any  such  city  or  town  to  which  such  per- 
i>on  shall  remove  as  aforesaid,  and  to  follow  any  employment 
within  the  same  ;  and  the  overseers  of  the  poor  shall  deliver  every 
such  certificate  to  the  town  clerk  of  the  city  or  town  in  which 
any  such  person  shall  come  to  reside  as  aforesaid,  who  is  hereby 
required  to  file  and  record  the  same :  And  further,  Every  such 
certificate,  so  acknowledged  or  proved,  and  allowed  as  afore* 
said,  shall  be  deemed  in  all  courts  whatsoever,  within  this  state, 
as  duly  proved,  and  shall  be  taken  and  received  as  evidence, 
without  any  other  proof  thereof."  s.  12. 

"  Whenever  any  person  with  his  family,  if  any,  or  any  part 
thereof,  so  remaining  by  virtue  of  the  certificate  aforesaid,  shall 
become  chargeable,  or  be  obliged  by  sickness,  or  otherwise,  to  ask 
relief  of  the  city  or  town  into  which  such  person  was  received  as 
aforesaid,  then,  and  not  before,  it  shall  be  lawful  for  any  two 
justices  of  the  peace  of  the  city  or  county,  into  which  such  person 
was  received  by  virtue  of  such  certificate,  to  remove  and  convey 
every  such,  person  with  his  family  and  children,  though  born  in 
*uch  city  or  town$  and  servants  and  apprentices,  not  having  other- 
wise acquired  a  legal  settlement  there,  to  the  city  or  town  from 
which  such  certificate  was  brought  as  aforesaid,  the  overseers  of 
the  poor  of  which  city  or  town  are,  in  such  case,  hereby  required 
and  obliged  to  receive  and  provide  for  every  such  person  and  his 
family  as  aforesaid."  s.  1  3. 

"  JVo  person  who  shall  come  to  reside  in  any  city  or  town,  by 
virtue  of  any  such  certificate,  shall  be  deemed  or  adjudged  by  any 
act  whatsoever,  of  such  person,  to  have  gained  a  legal  settlement 
in  such  city  or  town,  during  the  time  such  person  shall  rende 
There  by  virtue  of  such  certificate,  unless  such  person  shall  bona 
fide  purchase  a  freehold  of  the  value  of  seventy-five  dollars,  or  up- 
wards, or  bonajide  have  rented  and  occupied  a  tenement  of  the 
yearly  value  of  thirty  dollars,  or  upAvards,  for  two  whole  years,  or 
shall  have  executed  a  public  annual  office  or  charge  in  such  city 
or  town  for  one  whole  year  as  aforesaid."  s.  14. 

•••  When  any  person  or  his  family,  residing  in  any  city  or  town, 


POOR.  347 

or  sent  thither  by  certificate,  and  becoming  chargeable  as  afore- 
said, shall  be  removed  back  to  the  city  or  town  to  which  such 
person  shall  belong,  the  overseers  of  the  poor  shall  be  reimbursed 
such  reasonable  "charges  as  he  or  they  may  have  been  put  unto 
in  maintaining  and  removing  such  person,  by  the  overseers  of  the 
poor  of  the  city  or  town  to  which  such  person  is  or  shall  be  re- 
moved, the  said  charges  having  been  first  ascertained  and  allowed 
by  two  or  more  of  the  justices  of  the  peace  of  the  city  or  of  the 
county  in  which  such  town  from  which  such  removal  shall  be  made 
shall  be,  which  said  charges,  so  ascertained  and  allowed,  shall,  in 
case  of  refusal  of  payment,  be  levied  by  distress  and  sale  of  the 
goods  and  chattels  of  the  overseers  of  the  poor  of  the  city  or 
town  to  which  such  certificated  person  shall  be  removed  as  afore- 
said, by  warrant  under  the  hands  and  seals  of  any  two  justices  of 
the  peace  of  the  city  or  county  where  the  overseers  of  the  poor 
shall  reside,  who  are  hereby  authorized  and  required  to  issue  the 
same,  directed  to  some  constable  of  such  city  or  town,  returning 
the  overplus,  if  any  there  be,  after  deducting  all  lawful  costs  and 
charges  of  such  sale."  s.  15. 

V.  Appeal. 

"  Every  person  who  shall  think  himself  aggrieved  by  any  judg- 
ment or  order  of  any  justice  or  justices  of  the  peace,  or  by  war- 
rant of  removal  of  any  poor  person,  may  appeal  to  the  next  gene- 
ral sessions  of  the  peace,  to  be  holden  in  and  for  such  city,  or  in 
and  for  the  county  in  which  such  city  or  town  shall  be,  where 
such  judgment  or  order  shall  be  made,  or  from  which  such  per- 
son shall  be  removed  as  aforesaid,  who  are  hereby  authorized  and 
required  to  hear  and  determine  such  appeals,  and  to  do  justice 
therein  according  to  the  merits  of  the  respective  cases  :  Jlnd fur- 
ther, No  justice  of  the  peace,  who  shall  reside  in  any  city  or  town 
where  any  dispute  shall  happen,  except  in  the  «ity  and  county  of 
New-York,  shall  sit  in  court  upon  such  appeal."  s.  17. 

"  No  appeal  from  any  judgment  or  order  whatsoever  of  an}- jus- 
tice or  justices  of  the.  peace,  or  from  any  order  of  removal  of  any 
poor  person  whatsoever,  from  one  city  or  town  to  another,  shall 
be  proceeded  upon  in  any  court  of  general  sessions  of  the  peace, 
unless  reasonable  notice  in  writing  be  given  by  the  overseers  of 
the  poor  of  the  city  or  town,  or  the  person  who  shall  make  such 
appeal,  unto  the  overseers  of  the.  poor,  or  one  of  them,  of  such  city 
or  town  as  shall  be  affected  by  such  judgment  or  order,  or  from 
which  such  poor  person  shall  be  removed,  the  reasonableness  of 
which  notice  to  be  determined  by  the  justices  of  such  general 
sessions  of  the  peace  to  which  the  appeal  is  made  ;  and  if  it  sh=ill 
appear  to  them  that  reasonable  notice  was  not  given,  then  they 
shall  adjourn  snob  appeal  to  the  next  general  sessions  of  the  peace, 
and  then  and  then'  (nially  hear  and  determine  the  same."  s.  If). 

••  If  the  justices  shall,  at  theic  general  sessions  of  the  peace,  to 


POOR. 

bfi  hoiden  HI  and  fur  any.  city  or  county  n 

appeal    before  them   concerning  the  settlement  of  any  poor  per- 
son, determine  in  favour  of  the  apjielfont,  lh:it  such  pi 
w,<;5  unduly  removed,  then  the  said  jus?tic<  -  r-h.il!,  atthe  same  ge- 
neral sessions,  award  to  such  appellant  so  much  money,   L. 
his  costs  and  charges,  as  shall  appear  to  the  said  justices  to  ha^e 
been    reasonably  paid  and  expended  by  the  * 
of  the  city  or  town  on  whose  behalf  such  appeal  was  made, 
towards  the  relief  of  such  poor  person,  between  the  lime  o; 
undue  removal   and  the  determination  of  such  appeal :  .Jndfur- 
thtr,  upon  every  appeal  upon  any  judgment  or  order  of  any  justice 
or  justices  concerning;  the  settlement  of  any  poor  person,  or  upon 
any  proof  of  notice  of  any  such  appeal  to  have  been  given  by  the 
overseers  of  the  poor  of  one  city  or  town,  or  by  any  other  person, 
to  the  overseers  of  the  poor  of  any  other  city  or  town,  or  to  any 
other   person,  though   such  person  did  not  afterwards  prosecute 
such  appeal,  the  justices  at  the  same  general  sessions  of  the  peace 
shall  award  to  the  party  in  whose  favour  such  appeal  shall  be  de- 
termined, or  to  whom  such  notice  did  appear  to  have  been  given 
as  aforesaid,  such  costs  and  charges  as  by  the  said  justices  shall, 
in  their  discretion,  be  thought  reasonable,  to  be.  paid  by  the  over- 
seers  of  the  poor  of  the  city  or  town,   or   other  person  against 
whom  such  appeal  shall  be  determined,  or  who  gave   notice    of 
such  appeal  as  aforesaid,  and  did  not  prosecute  the  same  : 
further,  If,  in  any  of  the  cases  aforesaid,  the  person  ordered  to  pay 
such  "monies,  and  cost?,   and  charges,   shall  reside  in   any  city  or 
county  out  of  the  jurisdiction  of  such  court  of  general  sessions  of 
the  peace,  it  shall  be  lawful  for  the  overseers  of  the  poor,  to  whom 
such  monies  were  directed  to  be  paid,  to   sue   for  and  recover  th» 
same  of  the  person  against  whom  such  award  was  made,  with  costs 
of  suit,  in  an  action   for  monies  had  and  received  to  the  plaintiff's 
use,  in  any  court  of  this  slate  having  cognisance  thereof,  in  which 
action  a  true  copy  of  the  award  of  such  justices  in  their  court  of 
general  sessions  of  the  peace,  signed  by  the  clerk,  and  s'ealed  with 
the  seal  of  the  same  court,  when  produced,  sh;;!!  be  sufficin 
dance  for  the  recovery  of  such  monies  so  awarded."     =..  '20. 

VI.  Poor-Rate. 

'•  The  majority  of  the  freeholders  and  inhabitants,  who  shall  be 
.bled  at  the  annual  town  meetings  in  each  town  in  this  state, 
shall  determine  and  agree  upon  such  sum  of  money  as  they  may 
think  proper,  for  the  purpose  of  maintaining  the  poor  in  such 
town  in  the  enduing  year,  of  which  each  town  clerk  shall  make 
full  and  proper  entries  in  the  town  book,  by  him  to  be  kept,  and 
r-h;!l!,  as  soon  as  conveniently  may  be,  deliver  a  true  copy  of  ?uch 
t-ntiy.  certified  under  his  hand,  to  the  supervisor  of  said  tow  n.  and 
the  said  supervisor  is  hereby  required  to  lay  the  same  before  the 
supervisor?  of  the  county  at  thtir  then  next  meeting,  in  order  that. 


POOR.  .{).;•» 

the  said  sum  may  be  raised   in  such  (own   for  the   support  anil 
maintenance  of  the  poor  thereof."  s.  23. 

There  are,  besides,  many  penalties  under  divers  penal  statutes, 
appropriated  either  wholly,  or  in  part,  for  the  maintenance  of  the 
poor,  and  which  will  be  found  under  their  respective  titles. 

VII.  Mode  of  rtlicf. 

"  When  any  poor  person,  belonging  to  any  city  or  town  within 
tfiis  state,  shall  apply  for  relief  to  any  overseer  of  the  poor  of 
5'ich  city  or  town,  the  said  overseer  of  the  poor  shall  make  appli: 
ration  to  a  justice  of  the  peace  of  such  city,  or  of  the  county  in 
Avhich  su,ch  town  shall  be,  which  said  justice  and  overseer  of  the 
poor  shall  inquire  into  the  state  and  circumstances  of  the  person 
so  applying  as  aforesaid  ;  and  if  it  shall  appear  to  the  said  justice 
nnd  overseer  of  the  poor,  that  such  person  is  in  such  indigent  cir- 
cumstances as  to  require  relief,  then  the  said  justice  shall  give  an 
order  in  writing  to  the  said  overseer  of  the  poor,  to  make  such 
allowance  weekly,  or  otherwise,  to  every  such  poor  person,  as  they, 
in  their  discretion,  shall  think  the  necessities  of  such  poor  person 
shall  require  ;  and  the  overseers  of  the  poor  shall  make  no  other 
or  further  allowance  to  such  poor  person  than  what  by  the  said 
order  shall  be  directed,  which  said  order  shall  be  a  sufficient 
voucher  for  the  payment  of  so  much  money  by  the  said  overseers 
of  the  poor,  and  shall  be  allowed  in  adjusting  their  accounts.  And 
if  any  poor  person  not  belonging  to,  or  not  having  gained  a  settle- 
ment in  any  city  or  town  within  this  state,  shall  apply  for  relief 
as  aforesaid,  the  said  overseer  shall  proceed  in  like  manner  as 
is  above  directed ;  and  if  the  overseer  and  the  said  justice,  to 
whom  application  shall  have  been  made  as  aforesaid,  shall  find  that 
such  poor  person  is  not  able  to  maintain  himself,  and  that  he  is  so 
sick  or  otherwise  dehilitated  that  it  would  be  improper  imme- 
diately to  remove  him,  or  when  it  shall  be  found  impossible  to 
make  any  order  of  removal,  the  said  justice  shall  give  an  order  to 
the  said  overseer  for  the  support  of  such  poor  person,  in  like 
manner  as  if  such  poor  person  belonged  to  such  city  or  town, 
which  said  order  shall  be  a  sufficient  voucher  for  the  payment  of 
so  much  money  by  the  said  overseer  of  the  poor,  and  shall  be  al- 
lowed \ti  the  adjustment  of  his  accounts  ;  and  itshall  be  the  duty 
of  the  overseers  of  the  poor,  in  the  several  cities  and  towns  with- 
in this  state,  to  keep  the  accounts  of  money  expended,  as  abov«* 
directed,  separate  and  distinct  from  other  expenditures ;  and  said 
accounts,  adjusted  and  allowed  as  aforesaid,  shall  be  considered, 
jirul  hereby  is  declared  to  be  a  public  and  necessary  county  charge, 
and  shall  be  levied,  collected,  and  paid,  as  other  county  charges 
are."  s.  25. 

The  following  important  case  has  been  decided  under  the  act. 
to  amend  tie  act  for  the  settlement  and  relief  rf  the  poor>  • 


350  POOR. 

f'O.  s.  >.  and  wbicb,  io  the  last  revision  of  the  Taws,  has  been  in- 
corporated into  the  section  just  cited. 

Ad*m>T.  A  rule  was  obtained  at  the  last  term,  requiring  the  defendants 

TjJjJ^J^  to  show  cause  why  a  mandamus  should  not  issue,  to  compel  then 
inn  t>im  coon-  to  audit  an  account  of  the  plaintiff's  for  medicine  and  attendance, 
J&/. InT**  as  a  physician,  on  one  .\'athinid  Turner,  a  pauper.  From  the 
affidavits  read  on  the  part  of  the  defendants,  the  following  facts 
appeared.  On  the  25d  April,  1810,  one  of  the  overseers  of  the 
poor  of  Hudson  applied  to  Adams,  as  a  physician,  to  attend  on 
the  pauper :  and  Mima  attended,  from  time  to  time,  until  the 
17th  July,  i£10,  and  presented  bis  account,  amounting  to  nine- 
ty-four dollars  and  seventy-three  cents,  to  the  defendants,  who 
refused  to  audit  it.  Two  justices  of  the  county  made  an  order, 
under  their  hands  and  seals,  upon  the  over  eers  of  the  poor  of 
Hudson,  to  provide  for  the  pauper  from  the  23d  of  April,  1810, 
for  his  weekly  board,  at  two  dollars  and  fifty  cents,  with  other 
necessaries  for  clothing,  and  also  such  medicine  and  attendance 
for  the  recovery  of  the  pauper  as  should  be  thought  necessary. 
One  of-  the  overseers  stated  that  the  pauper  had  no  settlement 
within  the  state  ;  that  he  was  not  in  a  situation  to  be  removed, 
and  that  he  supported  him  pursuant  to  the  order  of  the  justices, 
and  directed  the  plaintiff  to  attend  him.  Some  of  the  supervisors, 
in  their  affidavits,  stated,  that  one  of  the  justices  who  made  the 
order  was  examined  by  the  board,  and  stated,  that  the  justices,  or 
either  of  them,  did  not  with  the  overseers  Tisit  the  pauper  tu  Li; 
knowledge. 

Per  curt'asi.  The  act  of  2+lh  March,  1809,  (sess.  32.  c. 
makes  it  the  duty  of  the  overseers,  or  one  of  them,  of  the  city  or 
town  in  which  any  pauper  happens  to  be,  who  requires  relief,  and 
hath  no  settlement  within  the  state,  to  inquire,  together  with  any 
justice  of  fhe  county,  into  the  condition  of  the  pauper,  and  if  it 
snail  appear  necessary  to  the  overseer  or  justice,  the  justice  is  tu 
give  an  order  on  the  overseers  for  an  allowance  to  the  pauper, 
and  such  allowance  is  to  be  a  county  charge.  The  first  question 
in  this  case  is,  whether  the  order  w  as  valid.  The  act  does  not  re- 
quire two  justices  to  unite  in  making  the  order  ;  but  if  it  shall  be 
made  by  two  or  more,  instead  of  one,  that  circumstance  cannot 
weaken  it,  nor  are  the  overseers,  or  either  of  them,  to  unite  in 
making  it,  for  the  order  is^to  be  made  in  writing,  by  the  justice 
upon  the  overseer.  But  the  act  requires,  as  a  preliminary  fit  \>, 
that  the  justice  and  overseer  shall  inquire  into  the  condition  of  the 
pauper,  and  if  it  shall  appear  to  them  that  relief  is  necess; 
urder  is  to  be  made.  The  order  does  not  aver,  by  way  of  recital,  that 
those  steps  were  taken  ;  but  they  are  to  be  intended  to  ha\ . 
taken,  and  are  implied  in  the  order  itself.  The  act  does  not  pre- 
scribe any  formal  evidence  of  the  fact  of  its  having  appeared  to  the 
overseer,  as  well  as  th«  justice,  that  the  pauper  stood  in  need  of 
suppoi't.  It  is  to  be  iu-c»  -warily  inferred^tp  have  so  appeared  to 
ers,  as  they  dJd  not.  when  called  upon,  show  a- 


POOR. 

cient  cause  to  the  contrary.  They  must  have  conceded  the  fact. 
Nor  was  it  requisite  that  the  overseer  and  justice  should  have  in- 
qu;red  together  into  the  condition  of  the  pauper,  because  they 
are  not  to  do  any  joint  act.  The  order  is  to  be  the  exclusive  act 
of  the  justice.  The  order  is  of  itself  evidence  that  the  overseers 
and  justices  had  all  seen  the  pauper,  for  he  had  been  before  them, 
and  the  inquiry  by  each  into  his  circumstances  is  necessarily  to 
be  inferred.  There  was  no  formal  evidence  of  that  fact  required 
by  the  statute,  and  if  it  be  reasonably  implied,  it  is  well  enough. 
Objections  as  to  matters  of  form,  in  an  order  for  the  relief  of  a 
pauper,  are  to  be  overlooked,  and  humanity  dictates  that  such 
orders  should  be  liberally  treated.  All  that  one  of  the  justices 
stated  before  the  board  of  supervisors  was,  that  there  was  no 
joint  inquiry  into  the  state,  of  the  pauper.  The  facts  on  the  face 
of  the  order  prove  that  each  party  must  have  made  the  inquiry, 
and  the  debility  and  helplessness  of  the  pauper  must  have  ap- 
peared to  all,  for  it  is  no  where,  nor  by  any  person  denied.  Thfc 
second  objection  is  as  to  the  extent  of  the  allowance.  It  is  not 
only  a  weekly  sum,  but  necessary  medicine  and  attendance.  The 
act  says  that  the  justice  is  to  mak'e  "such  allowance  weekly,  or. 
otherwise,  as  the  necessities  of  the  pauper  shall  require."  This 
gives  a  reasonable  discretion  to  the  magistrate,  as  to  the 
mode  and  nature  of  the  allowance.  If  the  pauper  be  sick,  com- 
mom  sense  and  humanity  dictate  that  medicine  and  attendance 
are  as  necessary  as  food  and  clothing,  and  the  precise  amount 
of  such  medicine  and  attendance  could  not  be  fixed  before- 
hand. It  must  depend  upon  the  circumstances  of  the  case. 
The  account  exhibited,  as  well  as  the  order  of  the  justices,  shows 
the  distressed  condition  of  the  pauper.  The  justices,  in  their  or- 
der, say,  that  "  he  must  inevitably  perish,  unless  timely  relieved," 
as  he  had  a  white  swelling  on  his  knee  ;  and  it  appears  that  the 
disorder  terminated  in  the  amputation  of  his  thigh.  If  an  order  • 
on  the  overseers  for  medical  aid  could  not  be  legally  made  in 
such  a  case,  what  was  to  be  done  ?  Did  the  statute  mean  that 
the  man  should  be  left  to  the  aid  of  private  compassion,  or  to 
perish  ?  The  law  ought  not  to  be  so  narrowly  construed,  and  the 
order  is  to  be  deemed  sufficient  to  cover  the  expenditure  in  ques- 
tion. The  third  and  only  remaining  question  is,  as  to  the  regular  . 
mode  of  adjusting  and  exhibiting  the  charge  to  the  board  of  su- 
pervisors. It  is  to  be  exhibited  as  a  charge  paid  by  the  over- 
seers, under  the  order  of  the  justice.  The  account  exhibited, 
though  signed  by  the  overseer,  has  never  been  paid  by  him,  nor  is 
it  stated  that  the  overseer  had  even  examined  and  admitted  the 
account  as  just  and  correct.  It  was  handed  by  him  to  the  super- 
visors, just  as  it  had  been  presented  to  him  by  the  physician. 
He  was  only  the  agent  of  transmission.  The  overseers  are  not 
the  complainants  in  thq  present  case.  It  is  Mams,  the  physician, 
who  complains  and  sues  for  the  mandamus.  But  the  persons  who 
afford  assistance  to  the  pauper  are  to  look,  to  the  overseer,  and  he 


POOH. 

is  to  pay  thorn.  The, statute  says,  that  the  order  ".shall  IIP  a  suf- 
ficient voucher  for  the  payment  of  so /much  money  by  the  said 
overseer."  The  supervisors  of  the  county  are  not  the  board  to 
ascertain  whether  the  services  have  been  actually  and  faithfully 
rendered  to  the  pauper.  That  must  be  adjusted  by  the  over- 
seers of  the  poor,  who  are,  in  the  first  instance,  responsible  to  the 
persons  rendering  the  assistance.  The  supervisors  were  only  to 
pay  such  accounts  as  the  overseers  had  adjusted  and  paid,  in  pur- 
suance of  the  order.  As  the  account  in  question  had  never  been 
adjusted,  allowed,  and  paid  by  the  overseers  of  Hudson,  the  su- 
pervisors, for  that  reason,  were  not  bound  to  notice  it,  and  on 
that  ground  alone  the  court  refuse  to  interfere.  But  we  have 
given  our  opinion  on  the  merits  of  the  case,  so  that  when  the  ac- 
count shall  have  been  liquidated  and  settled  by  the  overseers,  and 
duly  exhibited  by  them  to  the  supervisors  of  the  county,  it  may 
he  paid,  without  the  necessity  of  an  application  to  this  court. 
Rule  refused. 

"  It  shall  and  may  be  lawful  for  the  overseers  of  the  poor  of 
any  city  or  town,  by  and  with  the  consent  of  the  common  coun- 
cil of  such  city,  or  of  two  justices  of  the  peace  of  the  county 
in  which  such  town  shall  be,  whenever  any  poor  person,  legally 
settled  in  such  city  or  town,  and  maintained  at  the  public  charge, 
who  were  or  shall  become  lunatic  or  insane,  to  contract  with  the 
governors  of  the  New-York  hospital,  in  the  city  of  New-York,  for 
the  maintenance  and  care  of  such  lunatic,  on  such  terms  as  they 
may  deem  meet,  and  to  transport  such  lunatic  to  the  said  hos- 
pital ;  and  all  such  sums,  so  agreed  on  for  the  maintenance  of  such 
lunatic,  shall  be  regularly  paid  to  the  governors  of  the  said  hos- 
pital by  the  overseers  of  the  poor  of  such  city  or  town,  and  their 
successors  in  office  ;"  and  it  shall  be  the  duty  of  the  overseers  to 
enter  in  the  poor-books  the  name  of  the  lunatic,  the  sums  agreed 
to  be  paid  by  them,  and  the  charges  of  removal  to  and  from  the 
said  hospital:  Provided,  "That  the  settlement  of  such  lunatic,  so 
removed  to  the  said  hospital,  shall  remain  the  same  as  before  hi? 
nr  her  removal,  and  that  it  shall  not  be  lawful  for  the  overseers  of 
the  poor  of  any  such  city  or  town  to  remove  to  the  said  hospital 
idiots,  or  other  poor  persons  who  are  not  lunatic  or  insane."  s.  2(j. 

It  shall  be  lawful  for  the  overseers  of  Albany  and  Hudson,  with 
tire  consent  of  the  common' council,  "and  for  the  overseers  of  the 
poor  of  any  town  within  this  state,  and  any  two  or  more  justices 
of  the  peace  of  the  county  in  which  such  town  shall  be,  with  the 
consent  of  the  major  part  of  the  freeholders  and  inhabitants  of 
such  town,  to  be  signified  at  such  annual  town  meeting,  and  at 
the  proper  charge  of  such  city  or  town,  to  be  ascertained,  assess- 
ed, and  levied  as  aforesaid,  (see  sect.  23.  p.  318.  and  sect.  28. 
post.)  to  build,  purchase,  or  hire  some  fit  and  convenient  dwelling- 
house  or  houses,  in  such  city  or  town,  for  the  lodging  and  ac- 
commodation of  the  poor  thereof,  and  also  to  purchase  necessary 
materials  for  .setting  such  poor  persons  to  work,  and  there  to 


POOR. 

maintain  ami  employ  every  such  poor  person,  and  to  take  the 
'i  of  tin-  iaimur  and  services  of  any  such  poor  person  for  the 
i»:ii.ite:i;uic<  and  relief  of  such  poor  persons  who  shall  be 
ih  re  kept  and  main!  lined,  and  to  appoint  such  keepers  thereof 
from  time  to  time  as  they  sliall  think  proper;  and  in  case  any 
pour  per 'on  claiming  relief  of  any  city  or  town  within' this  state 
when:  M,C!I  house  or  houses  shall  he  so  built,  &tc.  shall  refuse  to 
he  lodged,  kept  to  work,  and  maintained  therein,  such  poor  per- 
son shall  he  put  out  of  the  book  in  which  the  names  of  the  poor 
are  directed  by  this  act  to  be  registered,  and  shall  not  he  entitled 
to  receive  any  relief  from  the  overseers  of  the  poor  of  any  sucli 
city  or  town:  And  further,  Where  any  town  may  he  too  small  to 
build,  &tc.  such  house  or  houses,  it  shall  be  lawful  for  the  over- 
seers of  ihn  poor  and  justices  of  the  peace,  with  the  consent  of 
the  major  part  of  the  freeholders  and  inhabitants  of  two  or  more 
towns  iu  any  county  in  this  state,  to  he  signified  at  their  annual 
town  meetings,  to  unite  in  building,  &LC.  such  house  or  houses,  for 
the  keeping  and  maintaining  of  the  poor  of  such  towns,  and  also 
to  purchase  necessary  materials  for  setting  such  poor  persons  to 
work,  and  there  to  maintain  and  employ  every  such  poor  person, 
and  to  take  the  benefit  of  the  labour  and  services  of  such  poor  per- 
sons, for  the  better  maintenance  and  relief  of  the  poor  therein, 
and  to  appoint  such  keepers,  ik-c. ;  and  in  case  any  poor  person 
claiming  relief  of  any  of  the  towns  so  uniting,  shall  refuse  to  be 
lodged,  Sec.  as  aforesaid,  such  poor  person  shall  be  put  out  of  the 
book  in  which  the  names  of  the  poor  are  by  this  act  directed  to 
be  registered,  and  shall  not  be  entitled  to  receive  any  relief  from 
the  overseers  of  the  poor  of  any  such  town  :  And  further,  It  shall 
he  lawful  for  the  overseers  of  the  poor  and  justices  of  any  town 
within  this  state,  with  the  consent  of  the  major  part  of  the  free- 
holders and  inhabitants  of  such  town  where  such  house  or  houses 
shall  be  built,  purchased,  or  hired,  for  the  purposes  aforesaid,  to  be 
•signified  at  such  annual  town  meeting,  to  contract  with  the  over- 
seers of  the  poor  and  justices  of  any  other  town  for  the  lodging, 
maintaining,  and  employing  of  any  poor  person  belonging  to  such 
other  town,  as  to  them  shall  seem  meet;  and  in  case  any  such 
poor  person,  belonging  to  any  other  town,  slvall  refuse  to  be  lodged, 
&c.  in  any  house  so  contracted  for  as  aforesaid,"  he  is  to  be  ex- 
cluded from  relief,  as  before  directed,  s.  2y. 

VIII.  Overseers1  Accounts. 

"The  overseers  of  the  poor  of  each  city  or  town  within  this 
state,  shall  procure,  at  the  public  charge,  a  book,  wherein  ilie 
names  of  all  poor  persons  applying  for  relief,  and  being  ordered 
to  be  relieved  as  aforesaid,  shall  be  registered,  with  the  day  'i  id 
year  when  they  were  first  admitted  to  have  relief,  the  weekly  or 
other  sum  or  sums  of  money  allowed  by  the  order  for  their  re- 
lief, and  the  cause  of  snch  necessity;  and  no  person  shall  be  en- 

r   4.5    1    • 


354  POOR. 

tered  in  the  poor-book*,  or  receive  relief  from  the  over.--o.crs  oi' 
the  poor,  or  any  of  them,  without  such  order  ,  and  in  case  any 
overseer  of  the  poor  shall  enter  in  the  poor  books  and  relieve  arty 
poor  person,  without  such  order,  lie  shall  forfeit  and  lose  all 
such  money  and  goods  paid  and  distributed  to  such  poor  person, 
nor  shall  any  allowance  be  made  to  him  for  the  same  in  } 
his  .iccounts;  and  the  said  overseers  of  the  poor  are  hereby  di- 
rected and  required  to  enter  in  the  said  poor-books  all  monies  re- 
ceived, laid  out,  and  disbursed  by  them  for  the  use  of  the  poor, 
and  also  all  matters  which  shall  be  transacted  by  them  relating  to 
their  said  office;  and  the  overseers  of  the  poor  for  the  cities  of 
Albany  and  Hudson  shall  yearly  lay  such  books  of  account  before 
the  common  council  of  the  said  cities  respectively,  at  such  time 
"  as  the  said  respective  common  councils  shall  direct ;  and  the  over- 
seers  of  the  poor  of  every  town  shall  yearly,  on  the  last  Tuesday 
next  preceding  the  annual  town-meeting  in  such  town,  lay  their 
said  books  of  accou;.t  before  the  town-clerk  and  supervisor  of 
such  town,  and  such  justice  or  justices  of  the  peace  as  may  re- 
^i'iv  in  such  town,  or  the  major  part  of  them,  for  their  examina- 
tion, who  shall  examine  and  audit  the  same,  and  make  report 
thereof  to  the  freeholders  and  inhabitants  of  their  respective  towns, 
at  their  next  annml  town-meeting,  that  such  further  provision  for' 
the  maintenance  and  support  of  the  poor  may  be  made  aswnay  be 
found  necessary."  s.  23. 

"The  overseers  of  the  poor  of  each  city  and  town  in  this  state 
shall  annually,  within  fifteen  days  after  the  termination  of  their 
respective  oitices,  exhibit  to  the  succeeding  overseers  of  the  poor 
of  such  city  or  town  a  just  and  true  account  of  all  the  monies  by 
them  respectively  received  and  expended  for  the  use  of  the  poor, 
.'nd  in  ^hat  manner,  together  with  an  account  of  the  earning-  of 
the  poor  persons  by  them  employed;  which  accounts  the  said 
overseers  of  the  poor,  together  with  the  supervisor  of  such  city  or 
town,  and  justices  of  the  peace  residing  in  such  city  or  town,  or 
the  major  part  of  them,  shall,  as  soon  as  conveniently  may  be, 
examine  and  audit."  The  overseers,  on  auditing  such  account, 
shall  pay  the  balance,  appearing  to  be  in  their  hands,  to  their  suc- 
cessors ;  and  shall,  at  the  time  of  exhibiting  their  accounts,  de- 
liver to  their  successors  all  books  of  accounts,  registers,  and  other 
papers  relating  to  the  poor,  and  for  neglect  or  refusal  in  either  case, 
the  delinquent  is  subjected  to  a  penalty  of  two  hundred  and  fifty  dol- 
lars above  the  balance,  remaining  in  his  hands,  recoverable,  with 
costs,in  any  court  of  record  within  the  state  by  the  overseers  of  the 
poor  of  the  town,  and  when  recovered  is  to  be  applied  to  the  use 
of  the  poor  therein  ;  and  if,  upon  auditing  their  accounts,  a  balance 
shall  appear  to  be  due  to  the  overseers  going  out  o£  office,  or  to 
either  of  them,the  same  shall  be  paid  them  by  theirsuccessorsout  of 
the  first  monies  which  shall  come  into  their  hands  as  overseers,  s.30. 

The  ovirseers  of  each  city  and  town  may,  in  their  own  name, 
fo  recover  money  appearing  due  on  such  audit,  from  their  pi  ede- 


POT  AND  PEARL  ASHES.       .  .355 

v.t;ssors,  and  each  of  them,  tlidr  executors  and  administrators, 
li...,  an  action  for  money  had  and  received  to  the  use  of  such 
city  or  town,  or  action;*  of  account;  and  such  aution  shall  not 
abate  by  the  death  or  expiration  of  the  office  of  the  plaintiffs,  hut 
shall  he  continued  by  the  survivor  or  survivors,  and  their  succes- 
sors iu  oih'ce.  s.  3 1. 

13y  the  /7th  section  of  this  act,  the  overseers  of  the  poor  arc 
authorized  and  directed  to  loan  out,  on  lawful  interest,  the  money 
that  hath  or  shall  come  into  their  hands;  over  and  above  the  sum 
which  Hi,',  overseers,  supervisor,  and  town-clerk  for  the  time  be- 
ing, shall  deem  necessary  for'the  support  of  the  poor,  during  the 
time  such  overseers  shall  continue  in  oCice,  to  such  inhabitants  of 
the  town  as  may  offer  sulHcient  security,  to  be  approved  of  by 
the  supervisor  and  town-clerk  ;  and  the  obligations  taken  for  se- 
curing payment  shall  be  drawn  payable  to  the  overseers,  or  th«ir 
successors,  on  the  day  next  succeeding  that  on  which  their  ollices 
will  expire  ;  which  obligations,  on  auditing  their  accounts,  are  to 
he  allowed  as  so  much  money  in  their  hands,  and  are  to  he  deli-. 
vered  to  their  successors,  who  may,  in  their  own  names,  without 
any  assignment,  sue  for  the  amount  due  on  them,  with  interest; 
or  may,  with  the  approbation  of  the  supervisor  or  town  clerk, 
reloan  the  said  money  due  on  such  obligations,  together  with  the 
interest,  and  take  a  new  obligation  for  the  amount,  payable  with 
inlerest.  as  before  directed. 


POT  AND  PEARL  ASHES. 

By  the  act  concerning  {he  inspection  of  pot  and  pearl  ashes,  sess.  2  R.L.SJ 
•>;>.  c.  22.  the  governor  and  council  of  appointment  may  appoint, 
i'or  the  cities  of  New-York  and  Albany,  not  less  than  two,  or 
more  than  six,  inspectors  of  pot  and  pearl  ashes,  and  one  inspec- 
tor in  each  city  or  county  of  tLis  state,  where  it  may  be  deemed 
necessary,  s.  1. 

Each  inspector,  before  entering  on  the  execution  of  his  office, 
shall  take  and  subscribe  the  following  oath,  or  atFirmalion,  before 
any  person  authorized  to  administer  the  same  ;  or,  if  in  New-York 

or  Albany,  before  the  mayor  or  recorder:   "  I, ,  do  solemnly 

sivcar  (or  affirm)  that  I  will  faithfully,  truly  arid  impartially,  to 
the  best  of  my  judgment,  skill,  and  understanding,  execute,  do, 
and  perform  the  office  and  duty  of  an  inspector  and  examiner  of 
pot  and  pearl  ashes,  according  to  law  ;  and  that  I  will  not,  directly 
•>r  indirectly,  by  myself,  or  any  other  person  or  persons  for  me, 
liny  or  sell  any  pot  or  pearl  ashes,  during  the  time  I  continue  in- 
spector of  the  same,  on  my  own  account,  or  upon  the  account  of 
any  other  person  or  persons  whomsoever,  so  help  me  God."  s.  2. 

The  inspector  shall  distinguish  each  quality    of  the    ashes   in- 
by  him,  by  the  words  "first  sort,'"    "  second  sort"  or 


356  POT  AND  PEARL  ASHES. 

"  third  sort"  with  the  words  "pot"  or  "pearl  ashes;"  which,  tw 
gcther  with  the  letters  of  his  name,  and  the  place  where  insprct- 
ed,  shall  be  branded  at  full  length  on  each  of  the  casks  ;  and  he 
shall  also  mark,  with    a   marking    iron,  on   each   cask,  the. gross 
weight  thereof,     s.  3. 

"  If  any  person  shall  intermix,  with  any  pot  or  prarl  ashes,  any 
stone  lime,  salt,  or  other  improper  substance,  whereby  its  quality 
is  prejudiced  or  reduced,  he  shall,  on  conviction,  forfeit  the  sum  of 
twenty  dollars  for  every  offence,  to  be  recovered  in  an  action  of 
di'bt,  the  one  moiety  to  the  people  of  the  state,  and  the  other  to 
the  prosecutor."  s,  4. 

"  Every  person  who  shall  manufacture  any  pot  or  pearl  ashes 
shall,  with  a  distinguishable  brand  or  mar  king  iron,  impress  upon  each 
cask  of  pot  or  pearl  ashes,  of  his  own  manufacture,  the  initial  let- 
ters of  his  Christian  name,  and  surname  at  full  length,  before  the 
removal  of  such  cask  from  the  place  of  manufacture,  under  the 
penalty  of  five  dollars  for  every  cask  so  removed  without 
branded  or  marked  as  aforesaid,  to  be  recovered  and  applied  as 
is  in  the  foregoing  clause  provided."  s.  5. 

"  If  an  inspector,  on  examination,  shall  find  the  ashes  adulte- 
rated, he  shall  mark  the  cask  with  the  word  "condemned;"  and 
if  any  person  shall  oiler  for  sale  any  ashes  so  condemned,  for  any 
oilier  than  condemned  ashes,  he  shall  forfeit  twenty-five  dull.irs 
for  every  barrel  so  exposed  for  sale,  to  be  recovered  by  any  per- 
son who  will  sue  for  the  same,  before  any  court  having  cognisance 
thereof,  the  one  half  to  the  use  of  the  poor  of  the  city  or  town 
where  such  recovery  shall  be  had,  and  the  other  half  to  the  use 
of  the  prosecutor."  s.  7. 

Every  inspector  is  authorized  to  enter  on  board  of  any  vessel, 
lying  or  being  in  the  harbour  where,  he  is  authorized  to  inspectyto 
search  for  ashes  shipped  or  shipping  for  exportation  out  of  this 
state,  except  to  the  provinces  of  Upper  and  Lower  Canada,  ami 
if  he  shall  discover  any  casks  not  branded,  as  directed  by  this  act, 
the  same  shall  be  forfeited  ;  and  the  master  or  commander  of  any 
such  vessel,  who  shall  receive  any  cask  or  casks  of  pot  or  pearl 
ashes  not  branded,  shall  forfeit  the  sum  of  twelve  dollars  and  fifty 
cents;  and  if  any  master,  or  any  of  his  servants  or  seamen,  shall 
obstruct  or  hinder  the  inspector  in  making  search,  the  offender 
shall,  for  every  offence,  forfeit  the  sum  of  twenty-five  dollars,  s.  8. 

"  If  any  inspector  not  then  employed  in  the  duties  of  his  of- 
fice, shall,  on  application  to  him  to  examine  any  pot  or  pearl  ashes, 
refuse  or  delay  to  proceed  to  such  examination  and  inspection 
for  the  space  of  three  hours  thereafter,  he  shall,  for  each  offence, 
forfeit  two  dollars,  for  the  use  of  the  person  so  delayed."  s.  9. 

"  All  penalties  under  this  act  shall  be.  recoverable  by  action  of 
debt,  or  by  information,  in  the  same  manner  as  other  debts  of  the 
same  value  ;  the  one  moiety  thereof,  except,  where  the  same  arc 
directed  by  this  act  to  be  otherwise  applied,  to  the  use  <>f  t!ir 


PRIVILEGE.  357 

prosecutor,  and  the   other  moiety  to  the  use  of  the  poor  of  the 
city  or  town  where  the  offence  was  committed."  s.  1  1 . 


PRINCIPAL. 

A  man  m;iy  be  principal  in  an  offence  in  t\\o  degrees.  A  prin-  4  Black, 
cipal  in  t,he  first  degree,  is  he  that  is  the  actur  or  absolute  perpe- 
trator of  the  crime  ;  and  in  the  second  decree,  he  who  is  present, 
aiding  and  abetting  the  fact  to  he  done  ;  which  presence  need  not 
always  be  an  actual  immediate  standing  by,  within  sight  or  hear- 
ing of  the  fact,  but  there  may  he  also  a  constructive  presence,  as 
\vl;eii  one  commits  a  robbery  or  murder,  and  another  keeps 
waU-h  or  guard  at  some  convenient  distance.  And  this  rule  hath 
also  other  exceptions;  for,  in  case  of  murder  by  poisoning,  a 
man  may  he  a  principal  felon,  by  preparing  and  laying  the  poison, 
or  persuading  another  to  drink  it  who  is  ignorant  of  its  poisonous 
quality,  or  giving  it  to  him  for  that  purpose,  and  yet  not  adminis- 
ter it  himself,  nor  be  present  w-hen  -.lie  very  deed  of  poisoning  is 
committed.  And  the  same  reasoning  will  hold  with  regard  to 
other  murders  committed  in  the  absence  of  the  murderer,  by  . 
means  which  he  had  prepared  before  hand,  and  which  prob;  lily 
could  not  fail  of  their  mischievous  effect.  As  by  laying  a  trap  or 
pit-fall  for  another,  whereby  he  is  killed;  letting  out.  a  wild  beast 
with  an  intent  to  do  mischief;  or  exciting  a  madman  to  commit 
murder,  so  that  death  thereupon  ensues:  in  every  of  these  cases, 
the  party  offending  is  guilty  of  murder  as  a  principal  in  the  first 
degree  ;  for  he  cannot  bo  called  an  accessory,  that  necessarily 
presupposing  a  principal  ;  and  the  poison,  the  pit-fall,  tlu>  be.-si 
or  the  madman,  cannot  he  held  principals,  being  only  the  instru- 
ments of  death.  As,  therefore,  he  must  he  certainly  guilty,  either 
as  principal  or  accessor}',  and  cannot  be  so  as  accessory,  it  follows 
that  he  must  be  guilty  as  principal :  and  if  as  principal,  then  in  the 
first  degree  ;  for  there  is  no  other  criminal,  much  less  a  superior 
in  the  guilt,  Whom  he  could  aid,  abet  or  assist. 


PRIVILEGE. 

By  the  sixth  section  of  the  first  article  of  the  constitution  »i  Hi-- 
United States,  member*  of  both  houses  of  congress  are,  in  all  eaM-- 
except  treason,  felony,  and  breach  of  the  peace,  privileged  fr-'ni 
arrest  during  their  attendance  at  the  session  of  Ihtir  respective 
houses,  and  in  going  to  and  returning  from  the  same. 

With  respect  to  the  privilege  of  members  of  the  senate  and 
assembly  of  this  state,  and  their  servants,  it  is  enacted,  "that  any 
person  or  persons  shall  and  may  commence  and  prosecute  atjy  ;u  - 


358  PRIVILEGE. 

tion  or  suit  in  any  court  or  r<  COM!  in  this  state,  against  any 
tor  or  member  of  assembly  for  the  time  being,   or  Against  their  or 
any  of  their  servants,  or  an\  oiher  person  entitled  to  the  pmilcgH 
of  either  house  of  the  legislature,  at  any  time  from  and  immediate- 
ly after  t lie  prorogation  or  adjournment  of  the  legislature,  until  a 
»ew    legislature    snail   meet,   or   the  same   be   reassembled:  and 
from  and  immediately  after  any  adjournment  of  both  ho 
the  legislature  for  above  the  space  of  fourteen  d:<ys,    until   both 
houses  shall  meet   or  reassemble;  and  that   the  rtue 

courts  of  record  shall  and  may,  after  such  prorogation  or  adjourn- 
ment as  aforesaid,  proceed  to  give  judgment,' or  to  make  final  or- 
ders, decrees  and  sentence?,  and  award  execution  thereupon,  us 
such  court  may  now  lawfully  do,  against  other  persons  liable  to 
be  arrested  and  imprisoned,  any  law,  usage  or  custom  to  t!i 
irary  thereof  notwithstanding:  Provided  always,  That  no  member 
of  the  legislature,  o,r  his  servant  or  servants,  shall  be  liable  to  ar- 
rest on  any  civil  process,  while  coining  to  or  returning  from  tlu- 
place  where  tit-e  legislature  shall  sit.  to  the  place  of  such  member's 
residence,  but  Mich  time  of  coming  or  returning  shall  not  exceed 
fourteen  days."  Seas.  1  ! .  c.  34-  s.  1.  1  R.  L.  I '22. 

••  Where  any  plaintiff  or  plaintiffs  shall,  by  reason  or  occu.-i.m 
of  any  privilege  of  either  house  of  the  legislature,  be  stayed  OP 
prevented  from  prosecuting  any  suit  by  him,  her,  or  them  com- 
menced, such  plaintiff  or  plaintiffs  shall  not  be  barred  by  any  sta- 
tute of  limitation,  or  nonsuited,  dismissed,  nor  his,  her,  or  th;:r 
-uit  discontinued,  for  want  of  prosecution  of  the  suit,  by  him, 
her,  or  tham  begun,  but  may,  after  the  time  aforesaid,  be  at  li- 
berty to  procecu  to  judgment  and  execution  thereupon  as  afore- 
said." s.  'J. 

"  Any  action  or  suit  shall  and  may  be  commenced  and  prose- 
cuted in  any  court  of  record  in  this  state,  -against  any  officer  or 
p.ei-son  entrusted  or  employed  in  the  revenue  of  this  state,  or  any 
part  or  branch  thereof,  or  in  any,  other  office  or  place  of  public 
trust,  for  any  forfeiture,  misdemeanour,  or  breach  of  trust,  of, 
in.  or  relating  to  such  office  or  place  of  trust,  or  any  penalty  im- 
posed by  law  to  enforce  the  due  execution  thereof;  and  no  such 
action,  suit,  or  any  other  process,  proceeding,  judgment  or  ex- 
ecution thereupon,  although  such  officer  or  person  shall  be  a  mem- 
ber of  the  senate  or  assembly,  shall  be  impeached,  stayed  or  de- 
layed, by  or  under  colour  or  pretence  of  any  privilege  of  either 
house  of  the  legislature."  s.  3. 

folvinv.  It  was  moved    to  discharge  the  defendant  from  arrest,  on  tho 

i  jCiuisl  Cas.  ground  that,   being  a   member  of  the  assembly,  he  was  arrested 
415<  within  fourteen  days  after  leaving  the  legislature,    but  he  did  not 

state  whether  he  had  reached  his  home,  or  not  at  ihe  time  of  the 
arrest.  Per  curiam.  If  the  defendant  arrived  at  his  home  with- 
in the  foiirt'1'-  i  davs.  and  before  the  arrest,  the  reason  of  his  pri- 
vilege, and  of  course  the  privilege  itself,  ceased.  As  the  defend 


PRIVILEGE. 

ant  does  not  state  where  he  was  at  the  time  he  was  arrested,  the 
motion  must  he  denied,  with  costs. 

By  the  act  for  regulating  elections,  sess.  30'.  c.  41.3.  26.  2  R.  L. 
259.  "  it  sinll  not  be  lawful  for  any  officer  or  minister  of  justice 
to  serve  any  civil  process,  in  any  city  or  town  in  this  state,  on  any 
person  entitled  to  vote  at  any  election  to  be  held  by  virtue  of  this 
act,  between  the  day  preceding  such  election,  and  the  day  subse- 
quent to  the  closing  of  the  poll  thereof,  in  such  town  or  ward." 

By  the  militia  act,  sess.  32.  c.  lo'i.  s.  62.  "  The  militia  of  this 

st  r.»  shall  be  considered  to  be  under  arms  from  the   rising  until 

Uing  of  the  sun  of  the   same   day   that  they   shall   be    or- 

il  >»ut  by  law  for  improvement  or  inspection  ;  and  no  officer., 

M        totumissioned    officer,    or    private,  belonging    to    the  same, 

si'   ii,  while  under  arms,  be  subjected  to  be   arrested  on  any  ci- 

•••jcess."  * 

By    the    act   of  congress   of  July  II,    1798,  s.  5.  "  The  non- 

. missioned  officers,  musicians,  seamen  and  marines,  who  are 

or  shall  be  enlisted  into  the  service  of  the  United  States,  and  the 

non-commissioned  officers  and  musicians  who  are  or  shall  be  en- 

lis'.''l  into  the  army  of  the  United  States,  shall  be,  and  they  are 

exempted,  during  their  term  of  service,  from  all  personal 

arn-^ts  for' any  debt  or  contract." 

By  the  act  of  congress  of  the  16th  March,    1802,  s.  23.  "No 
non-commissioned  officer,   musician,  or  private,  shall  be  arrested 
or  subject  to  arrest,  or  to  be  taken  in  execution  for  any  debt  un 
der  the  sum  of  twenty  dollars,  contracted  before  enlistment,  nor 
for  any  debt  contracted  after  enlistment."  » 

By  the  act  concerning  costs,  srss.  30.  c.  9fi.  s.  8.  "No  attor- 
ney or  counsellor  at  law  of  any  court  of  record  shall  bf  entitled, 
as  such,  to  his  plea  of  privilege,  before  any  justice  of  the  peace 
or  othfjr  court,  for  the  recovery  of  any  debt  or  demand  against 
him,  to  the  amount  of  twenty-five  dollars  or  under,  unless  it  shall 
appear  that  the  court,  wherein  he  shall  be  such  attorney  or  coun- 
cilor, shall  be  then  sitting." 

By  the  act  of  congress  of  April  30,  1790,  s.  2.5.  "  If  any  writ 
or  process  shall,  at  any  time  hereafter,  be  sued  forth  or  prosecut- 
ed by  any  person  or  persons,  in  any  of  the  courts  of  the  United 
Slates,  or  in  any  of  the  courts  of  a  particular  state,  or  by  ;niy 
judge  or  justice  therein  respectively,  whereby  the  person  of  any 
ambassador,  or  other  public  minister  of  any  foreign  prince  or 
state,  authorized  and  received  as  such  by  the  president  of  the 
United  States,  or  any  domestic,  o.-  domestic  servant  of  any  such 
ambassador  or  other  public  minister,  may  be  arrested  or  impri- 
soned, or  his  or  their  goods  or  chattels  be  distrained,  seized  or 
attached,  such  writ  or  process  shall  be  deemed  and  adjudged  to 
be  utterly  null  and  void,  to  all  intents,  construction,  and  purposes 
whatsoever." 

By  the  2o'th  section  of  the  same  act,  "In  case  any  person  or 
persons  shall  sue  forth  or  prosecute  any  swcK  writ  «r  prt»c *•.<?. 


360  PRIVILEGE. 

such  person  or  persons,  and  all  attorneys  or  solicitors,  prosecuting 
or  soliciting  in  such  case,  and  all  officers  executing  any  MUC!I  writ 
or  process,  being  thereof  convicted,  shall  be  deemed  violators  of 
the  laws  of  nations,  and  disturbers  of  t'he  public  peace,  and  impri- 
soned not  exceeding  three  years,  and  fined  at  the  discretion  of  the 
Court." 

But  the  27th  section  contains  a  proviso,  "  that  no  citizen  or  in- 
h;t(',;ant  of  the  United  States,  who  shall  have  contracted  debts 
prior  to  his  entering  into  the  service  of  any  ambassador  or  other 
punlic  minister,  which  debts  shall  be  still  due  and  unpaid,  shall 
have,  take,  or  receive  any  benefit  of  this  act;  nor  shall  any  per- 
son be  proceeded  against  by  virtue  of  this  act  for  having  arrested 
or  sued  any  other  domestic  servant  of  any  ambassador  or  other  pub- 
lic "linister,  unless  the  name  of  such  servant  be  first  registered  iu  the 
oiHi-e.  of  the  secretary  of  stale,  and  by  such  secretary  transmitted 
to  tlvj  marshal  of  the  district  iu  which  congress  shall  reside,  who 
shail,  upon  receipt  thereof,  affix  the  same  in  some  public  place  in 
his  office,  whereto  all  persons  may  resort  and  take,  copies,  without 
fee  or  reward." 

i  Bae.  Abr.  A  consul,  or  any  person  acting  in  an  office  of  that  kind,  it 
tball.auT.  seems,  is  not  entitled  to  privilege,  or  exempted  from  prosecution 

for  a  crime 

i  Tidd.  174,  The  parties  to  a  suit  and  their  witnesses  are,  for  the  sake  of 
«7Bao  Abr  P»n''c  justice,  protected  from  arrest  in  coming  to,  attending  up- 
616.618.  on,  and  returning  from  the  court;  or,  as  it  is  usually  term  «l, 

1  H.  Black,     eundo,  morando  et  redeundo.     And  this  privilege  has  been  holden 

to  extend  to  all  persons  who  have  any  relation  to  a  cause  which 
calls  for  their  attendance  in  court,  and  who  attend  in  the  course 
of  that  cause,  though  not  compelled  by  process,  such  as  bail,  &c. 
Nor  have  the  courts  been  nice  in  scanning  this  privilege,  but  have 

2  w.  Black,     given  it  a  large   and  liberal   construction.     Thus,   where  the  de- 

fendant was  attending  his  cause. at  the  sittings,  and  though  it  was 
put  off  early  in  the  day,  stayed  iti  court  till  five  in  the  afternoon, 
and  then  went  with  his  attorney  and  witnesses  to  dine  at  a  tavern, 
where  he  was  arrested  during  dinner,  the  court  held  that  such  a 
necessary  refreshment  as  this  ought  not  to  be  looked  upon  as  a 

2Str.  986.  .  deviation,  so  as  to  cancel  the  defendant's  privilege  redeundo  So, 
where  a  witness  having  attended  a  trial  which  was  over  on  Fri- 
day, about  four  in  the  afternoon,  was  arrested  on  Saturday,  about 
seven  in  the  evening,  as  she  was  going  home,  the  court  held  that 
she  ought  to  be,  discharged,  her  protection  not  being  expired  ;  and 
that  a  little  deviation  or  loiteriag  would  not  alter  it. 

s  Term  Rep.        A  person  attending  a  reference,  under  a  rule  of  court,  is  pri- 

536  1  Caines'       .,          ,   - 

Rip.  us.    3    vileged  from  arrest. 

A  person  attending  the  sittings  from  day  to  day,  in  expectation 
that  the  cause  will  be  tried,  is  in  the  mean  time  protected  from 
arrest. 

Morris  v.  A  witness  who  resided  in  Connecticut,  and  attended  .the  su- 

ifjotui'i.Rep.  prerae  court  at  the  request  of  an  executor  and  devisee  of  a  will. 


5  Bac.  Abr. 

sir. 


PROCESS.  361 

for  the  purpose  of  proving  the  will,  to  which  he  was  a  sub- 
scribing witness,  pursuant  to  the  act;  and  after  he  had  given 
the  requisite  testimony,  was  proceeding  on  his  way  home,  when 
he  was  arrested  on  a  writ  issued  out  of  the  mayor's  court,  the  su- 
preme court  ordered  him  to  be  discharged. 

Where  a  person  who  was  under  recognisance  to  appear  at  the    BOUMV. 
general  sessions  of  the  peace,  while  attending  there,  was  arrested   /  "j^^1*0* 
on  a  writ  issued  out  of  the  supreme  court,  that  court  ordered  him   ReP-  438« 
to  be  discharged. 

In  an  action  in  a  justices  court  against*  constable,  for  the  es-   Ravv 
cape  of  one  Traver,  who  was  taken  on  execution,  it  was  admitted   u  joimj 
or  proved,  that  when  Traver  was  taken  he  was  a  soldier  in  the  ReP-«33 
army  of  the  United  States,  and  that  the  execution  was  under 
twenty  dollars.     The  plaintiff  below  obtained  a  judgment  before 
the  justice  against  the  constable  for  the  amount  of  the.  execution, 
which  was  reversed  on  certiorari.     SPENCER,  J.     The  constable 
was  not  bound  to  notice  the  fact,  that  Traver  was  protected  from, 
arrest;  but  if  he  chooses  to  notice  it,  or  neglects  to  take  a  person 
privileged  from  arrest,  and  can  show  that  he  is  so  privileged,  it  is 
a  good   defence  in  a^n  action  against  him.     No  wrong  or  injury 
has  been  done  to  the  plaintiff.     He  had  no  right  to  arrest  the  bo- 
dy of  Trailer ;  and  having  no  right  to  do  so,  he  cannot  found  any 
action  on  the  neglect  to  execute  his  writ. 


PROCESS. 

By  the  act  to  preserve  and  support  the  jurisdiction  of  this  state,  iR.L.131. 
sess.  22.  c.  3.  s.  I.  "Any  person  not  appointed  under  the  authori- 
ty of  the  United  States,  or  this  state,  to  execute  process  within 
the  state  or  district  of  New-York,  nor  being  an  inhabitant  thereof, 
who  shall  presume  to  come  within  the  state,  under  pretence  of 
ai>v  authority  whatever,  to  serve  or  execute  any  writ  or  process 
ajc.Mmit  any  citizen  of  this  state,  or  against  the  goods  and  chattels, 
la<ids  or  tenements  of  any  citizen  as  aforesaid,  shall  be  deemed 
and  adjudged  guilty  of  a  high  misdemeanour;  and  being'  thereof 
duly  convicted,  shall  be  sentenced  to  imprisonment  in  the  state- 
prison  of  this  state  for  the  term  of  seven  years,  and  be  confined  in 
the  same  to  hard  labour  or  solitude,  or  both,  at  the  discretion  of 
the  court  before  whom  the  conviction  shall  be  had  :  Provided, 
That  nothing  in  this  act  shall  extend  to  any  person  who  shall 
serve  a  process  to  compel  the  attendance  of  any  witness  before 
either  house  of  congress,  or  before  any  court  of  the  United 
State.s." 

By  the  third  section  of  the  same  act,  "  It  shall  be  the  duty  of  all 
sheriffs,  constables,  and  magistrates  within  this  state,  to  cause  to 
be  apprehended  all  offenders  against  this  ac.t ;  arid  if  any  :  rson, 
a  citizen  of  this  state,  shall  cause  to  be  taken  and  apprehended 

[  46  1 


362  RAPE. 

any  such  offender,  so  that  he  may  be  brought  to  proper  punish- 
ment, such  person  shall  be  entitled  to  receive  five  hundred  dol- 
lars from  the  treasury  of  this  state." 

Nicoiis  v.  in-  Bail,  in  another  state,  may  take  their  principal  in  this  state,  and 
fTd'hiis.  carry  him  back  to  the  state  in  which  the  recognisance  was  en- 
«ep.  MS.  tcred  into,  there  to  surrender  him  in  their  own  discharge. 


PUBLIC  DEFAULTERS. 

"  If  any  officer  of  this  state,  entrusted  with  public  monfes  by 
virtue  of  »uc!i  office,  shall  fraudulently  or'  corruptly  apply  any 
of  the  same  to  any  purpose  or  purposes  incompatible  with  the 
duties  of  his 'office,  whereby  the  people  of  this  state  shall  Sustain 
any  loss,  the  officer  so  acting  shall  be  considered  guilty  of  a  high 
misdemeanour,  and,  on  conviction  thereof,  shall  be  fined  in  a  sum 
not  exceeding  ten  thousand  dollars,  or  imprisoned  for  a  term  not 
exceeding  ten  years,  or  sentenced  to  confinement  at  hard  labour, 
in  the  state  prison,  for  a  term  not  exceeding  five  years,  in  the 
discretion  of  the  court  having  cognisance  thereof,  according  to  the 
nature  and  aggravation  of  the  offence."  Sess.  31.  c.  226.  1  R. 
L.  241. 


RAPE. 

I.  Rape. 
II.  Forcible  taking  and  marrying. 

I.  Rape. 

Sess.  24.  c.  Rape  is  the  carnal  knowledge  of  a  woman  forcibly,  and  against 

L/'ss.  "  her  will,  being  of  the  age  often  years  or  upwards,  or  the  carnal 
Co!- "210  knowledge  of  any  woman  child  under  the  age  of  ten  years,  either 
lEast.  p. c.  with  or  without  the.  consent  of  the  child,  which  is  immaterial  to 
434.  435.  ^e  0(fence?  an(j  jj-  js  jn  either  case  a  felony. 

4  Black.  A  male  infant  under  the  age  of  fourteen,  years  is  presumed  by 

?  Haie"p!  c.    law  incapable  to  commit  a  rape,  and  therefore  it  seems  cannot  be 
63i  i  East,     found  guilty  of  it.     But  he  may  be  a  principal  in  the  second  de- 
gree, in  case  it  appears  that  he  had  a  malicious  discretion, 
i  East.  P.  c.        It  is  no  mitigation  of  this  offence  that  the  woman  at  last  yielded 
F!  c.  'e"".^'     to  tne  violence,  if  such  her  consent  was  forced  by  fear  of  death 
(53i.  i  Hawfc.  or  by  duress.     Nor  is  it  any  excuse  for  the  party  indicted,  that 
the  woman  consented  after  the  fact ;  nor  that  she  was  a  common 
strumpet ;  for  she  is  still  under  the  protection  of  the  law,  and  may 
not  be  forced  ;  nor  that  she  was  first  taken  with  her  own  consent, 


RAPE.  f  36 

ii' she  were  afterwards  forced  against  her  will ;  Aor  that  she  was  a 
,  concubine  to  the  ravisher ;  for  a  woman  may  forsake  her  unlaw- 
ful course  of  life,  and  the  law  will  not  presume  her  incapable  of 
amendment.  All  these  latter  circumstances,  however,  are  mate- 
rial to  be  left  to  the  jury  in  favour  of  the  party  accused,  more 
especially  in  doubtful  cases?  and  where  the  woman's  testimony 
is  not  corroborated  by  other  evidence.  It  was  formerly  supposed, 
that  if  a  woman  conceived,  it  was  no  rape,  because  that  showed 
her  consent ;  but  it  is  now  admitted  on  all  hands,  that  such  an 
opinion  has  no  sort  of  foundation  either  in  reason  or  law. 

As  to  the  material  facts  requisite  to  be  given  in  evidence,  and  4  Black* 
proved  upon  an  indictment  for  rape,  they  are  of  such  a  na- 
ture, says  Mr.  Justice  Blackstone,  that  though  necessary  to  be 
known  and  settled,  for  the  conviction  of  the  guilty  and  preserva- 
tion of  the  innocent,  and  therefore  are  to  be  found  in  such  crimi- 
nal treatises  as  discourse  of  these  matters  in  detail,  yet  they  are 
highly  improper  to  be  publicly,  discussed,  except  only  in  a  court 
of  justice.  I  shall  therefore,  the  same  writer  continues,  merely 
add  upon  this  head  a  few  remarks  from  Sir  Maltheiv  Hale,  witli 
regard  to  th£  competency  and  credibility  of  witnesses  which 
may,  salvo  pudore,  be  considered. 

And,  first,  the   party  ravished  may  give  evidence  upon  oath,  .\  niacfc. 
and  is 'in  law  a  competent  witness  ;  but  the  credibility  of  her  tes-   3i4. ' 
timony,  and  how  far  forth  she  is  to  be  believed,  must  be  left  to  the 
jury  upon  the  circumstances  of  fact  that  concur  in  that    testi- 
mony.    For  instance,  if  the   witness   be   of  good  fame  ;  if  she 
presently  discovered  the  offence,  and  made  search  for  the  offen- 
der;  if  the  party  accused  fled  for  it;  these  and  the  like  are  con- 
curring circumstances,  which  give  greater  probability  to  her  evi- 
dence.    But,  on  the  other  side,  if  she  be  of  evil  fame,  and  stand 
unsupported  by  others  ;  if  she  concealed  the  injury  for  any  con-  - 
siderabfe   time   after  she  had   opportunity  to  complain  ;  if  the 
place  where  the  fact  was  alleged  to  be  committed,  was  where  it. 
was  possible  she  might  have  been  heard,  and  she  made  no  out- 
cry:  these,  and  theTike  circumstances,  carry  a  strong,  but  not 
conclusive,  presumption  that  her  testimony  is  false  or  feigned. 

Moreover,  if  the  rape  be  charged  to  be  committed  on  an  in-  4  Black, 
fant  under  twelve  years  of  age,  she  may  still  be  a  competent 
witness,  if  she  hath  sense  and  understanding  to  know  the  nature 
and  obligations  of  an  oath,  or  even  to  be  sensible  of  the  wick- 
edness of  telling  a  deliberate  lie.  It  is  now  settled,  (contrary 
opinions  having  formerly  been  held,)  that  no  hearsay  evidence 
can  be  given  of  the  declaration  of  a  child  who  hath  not  capacity 
to  be  sworn,  nor  can  such  child  be  examined  in  court  without 
oath;  and  that  there  is  no  determinate  age  at  which  the  oath  of 
a  child  ought  either  to  be  admitted  or  rejected.  Yet,  where  the 
evidence  of  children  is  admitted,  it  is  much  to  be  wished.,  in  or- 
der to  render  their  evidence  credible,  that  there  should  be  some 
concurrent  testimony,  of  time,  place  and  circumHtam-es,  in 


364  RECOGNISANCE. 

order  to  make  out  the  fact ;  and  that  the  conviction  should  not 
be  grounded  singly  on  the  unsupported  accusation  of  an  infant 
under  years  of  discretion.  There  may  be  therefore,  in  many 
cases  of  this  nature,  witnessed  who  are  competent,  that  is,  who 
may  be  admitted  to  be  heard  ;  and  yet,  after  being  heard,  may 
prove  not  to  be  credible,  or  such  as  the  jury  is  bound  to  believe. 
For  one  excellence  of  the  trial  by  jury  is,  that  the  jury  are  triors 
of  the  credit  of  the  witnesses  as  well  as  of  the  truth  of  the  fact. 
Scss.  36.  c.  Principals  and  accessories,  before  the  fact  in  rape,  are  to  be 

iujl.408.1      punished  with  imprisonment  for  life  in  the  state  prison. 

II.  Forcible  taking  and  marrying. 

"  If  any  person  shall  take  any  woman  against  her  will  unlaw- 
fully, and  marry  her,  or  cause  her  to  be  married  to  any  other  per- 
son by  the  assent  of  such  misdoer,  or  defiled,  every  such  taking, 
and  the  procuring  and  abetting  the  same,  shall  be  felony,  and 
punishable  as  in  cases  of  rape ;  and  every  taker,  procurer  and 
abettor  to  the  same,  shall  be  adjudged  a  principal  felon :  Pro- 
vided, however,  That  nothing  in  this  section  contained  shall  extend 
to  any  person  taking  any  woman,  only  claiming  her  as  his  ward 
or  bond  woman."  Sess.  2<t.  c.  is.  s.  2.  1  R.  L.  1 36. 


RECOGNISANCE. 

2  Black.  A  recognisance  is  an  obligation  of  record,  which  a  man  enters 

Com.  341.  jn^o  Hefore  some,  court  of  record  or  magistrate  duly  authorized, 
with  condition  to  do  some  particular  act,  as  to  appear  at  the  ses- 
sions, to  keep  the  peace,  to  pay  a  debt,  or  the  like.  It  is  in  most 
respects  like  another  bond ;  the  difference  being  chiefly  this,  that 
the  bond  is  the  creation  of  a  fresh  debt  or  obligation  de  novo, 
the  recognisance  is  an  acknowledgment  of  a  former  debt  upon 
record. 

4Burns'Just.  A  recognisance  can  only  be  taken  by  one  who  is  a  judge  or  of- 
loe.  Da  u  c.  ficer^0f  recorti .  ;n  some  cases  justices  of  the  peace  are  enabled 
to  take  them  by  the  express  words  of  certain  statutes ;  but  in 
other  cases,  as  for  the  peace  and  good  behaviour  and  the  like,  it  is 
rather  in  congruity,  and  by  reasonable  intendment  of  law,  than  by 
any  express  authority  given  them.  But  where  any  statute  gives 
them  power  to  bind  over  any  man  to  appear,  or  to  take  sureties 
for  any  matter  ox  cause,  they  may  take  a  recognisance.  Where- 
soever they  have  authority  to  cause  a  man  to  do  a  thing,  there 
it  seemeth  they  have,  in  congruity,  power  given  them  to  bind  the 
party  by  recognisance  to  do  it ;  and  if  the  party  shall  refuse  to  be 
bound,  the  justice  may  send  him  to  jail. 

j^ftrM'Jnst'  A  recognisance  must  be  made  to  the  people  of  the  state,  and 
must  contain  the  names,  place  of  abode,  and  trade  or  calling. 


RENT.  ^  365 

both  of  principal  and  sureties,  and  the  suras  in  which  they  are 
bound  ;  and  it  is  most  commonly  subject  to  a  condition,  which  is 
either  indorsed  or  underwritten,  or  contained  within  the  body  of 
it,  upon  the  performance  of  which  the  recognisance  shall  be  void. 

When  the  parties  enter  into  a  recognisance,  call  them  by  their 
names  thus : 

"  You,  A.  B.,  acknowledge  to  owe  to  the  people  of  the  state  of  ibid. 

New-York,  the  sum  of ,  and  you  C.  D.  acknowledge  to  owe 

to  the  people  of  the  state  of  New- York,  the  sum  of ,  to  be 

le\  i'-d  of  your  respective  goods  and  chattels,  lands  and  tenements, 
for  the  use  of  the  said  people,  if  default  shall  be  made  in  the  con- 
dition following  ;  that  is  to  say,  if  you  the  said  A.  B.  shall  make 
default  in  appearing,"  &c. 

When  the  recognisance  is  made  up,  the  justice  shall  subscribe    4  Burns' Just, 
it,  but  need  not  put  his  seal  to  it ;  and  it  may  be  in  either  of -these    \°l\  Dalu  c 
sorts,  acknoidedgtd  before  me,  J.  P.,  or  only  to  subscribe  his  name 
thus,  /.  P. 

No  recognisance  for  the  appearance  of  any  person  to  answer 
for  any  crime  or  misdemeanour,  or  to  testify  concerning  the  same, 
shall  be  valid,  unless  signed  by  the  party  so  recognised  to  appear 
or  testify,  and  such  party  shall  be  entitled  to  receive  from  the 
magistrate  taking  such  recognisance,  a  note,  or  memorandum  of 
the  condition  of  such  recognisance,  when  the  same  shall  be  re- 
quired by  such  party.  Sess.  36.  c.  6,5.  s.  18.  1  B..  L.  149. 

If  a  justice  shall  not  certify  a  recognisance  into  the  court  in- 
to which  it  ought  to  be  certified,  he  may  be  fined  by  the  court 
2.R.  L.  507. 


RENT. 

"  No  goods  or  chattels  whatsoever,  in  or  upon  the  demised  pre- 
mises, shall  be  liable  to  be  taken  by  virtue  of  any  execution,  on 
any  pretence  whatsoever,  unless  the  party  at  whose  suit  the  said 
execution  issued  out  shall,  before  the  removal  of  such  goods  from 
off  the  said  premises,  by  virtue  of  such  execution,  pay  to  the  land- 
lord of  the  said  premises,  or  his  bailiff,  all  and  every  sum  or  sums 
of  money  due  for  rent  for  the  said* premises  at  the  time  of  the 
taking  such  goods  or  chattels,  by  virtue  of  such  execution  :  Pro 
vided,  The  sum  claimed  to  be  due  for  and  during  the  whole  time 
of  the  demise  and  tenure  thereof  shall  not  exceed,  in  amount,  a 
sum  equal  to  the  last  year's  rent  thereof,  although  such  arrears 
might  have  become  due  before  such  year ;  and  in  cast'  the  said  ar- 
rears shall  exceed  one  year's  rent,  then  the  s;u'd  party  at  whose 
suit  such  execution  is  sued  out,  paying  the  said  landlord  or  his  bai- 
liff one  year's  rent,  may  proceed  to  execute  his  judgment,  as  he 
might  have  done  before  the  making  of  this  act,  and  the  sheriff  or 
ether  officer  is  hereby  empowered  and  required  to  levy  and  pay 


366  RIOT,  ROUT,  AND  UNLAWFUL  ASSEMBLY. 

to  the  plaintiff,  as  well  the  money  so  paid  for  rent,  as  the  execu- 
tion money."  Sess.  3(3.  c.CiS.s.  1'2.   1  R.  L.  4-37. 

Hazard  v.  Where  the  goods  of  a  tenant  who  had  hired  a  house  for  a  year, 

2ljaoyims.nRep.   ^or  a  sum  Payab!e  quarterly,  are  taken  in  execution,  the  landlord 
473.  is  not  entitled  to  rent  for  the  current  quarter,  but  only  to  the  rent 

due  on  the  last  quarter  day. 

Alexander  An  officer  who  levies  an  execution,  is  not  bound  to  leave  goods 

r  j^'i'0"'       on  t'u'  Prermses  sufficient  for  the  payment  of  the  rent  in  arrear, 
Rey.  185.       without  notice  for  that  purpose  from  the  landlord.     See  further 
as  to  rents,  DISTRESS,  I. 


RIOT,  ROUT,  AND  UNLAWFUL  ASSEMBLY. 

I.   What  they  are. 
II.  How  they  may  be  restrained  and  punished. 

I.   What  they  are. 

4  black.  When   three  persons  or  more  shall  assemble  themselves  tege- 

i  Hawk.  c.  ther,  with  an  intent  mutually  to  assist  one  another  against  any 
f^  DaltiC>  one  who  shall  oppose  them,  in  the  execution  of  some  enterprise  of 
a  private  nature,  with  force  or  violence  against  the  peace,  or  to 
the  manifest  terror  of  the  people,  whether  the  act  intended  were 
of  itself  lawful  or  unlawful  ;/  if  they  only  meet  to  such  a  purpose 
or  intent,  although  they  shall  after  depart  of  their  own  accord, 
with'out  doing  any  thing,  this  is  an  unlawful  assembly.  If  after 
their  first  nififiting  they  shall  move  forward  towards  the  execution 
of  any  such  act^  whether. they  put  their  intended  purpose  in  ex- 
ecution or  not;  this,  according  to  the  general  opinion,  is  a  rout ; 
and  if  they  execute  such  a  thing  in  deed,  then  it  is  a  riot. 
.JBarr.  1262.  If  six  persons  are  indicted,  two  of  them  die  untried,  two  found 
not  guilty,  and  two  guilty,  it  is  good,  for  it  shall  be  supposed  it 
was  committed  with  those  who  have  not  been  tried,  and  judg- 
ment shall  not  be  arrested. 

>Hawk.  c.  jf  ,a  qllalTe)  happen  to  fall  out  among  persons  who  are  met  to- 

gether on  some  lawful  occasion,  it  is  only  an  affray  ;  but  if,  on  a 
dispute  arising  among  them,  they  had  formed  themselves  into 
parties,  with  promises  of  mutual  assistance,  and  then  made  an  af- 
fray, they  are  guilty  of  a  riot ;  and  it  is  not  necessary  that  they 
should  have  met  for  the  purpose  of  making  a  riot,  for  if  such  a 
design  should  be  started,  and  carried  into  effect  after  their  meet- 
ing, they  will  be  riotous.  So  a  person  who  comes  in  afterwards, 
and  joins  himself  with  those  who  are  making  a  riot,  is  a  rioter. 
iHawk.c-.  jn  every  ri»t  there  must  he  some,  circumstances  either  of  ac- 

tual force  or  violence,  or  at  least  of  an  apparent  tendency  there- 
to :  hence  it  clearly  follows  that  assemblies  for  purposes  of  diver- 
sion are  not  rioters.  And  from  the  same  ground  also  it  seems  to 


.RIVERS.  367 

follo^,  that  it  is  possible  for  more  than  three  persons  to  assemble 
together  with  an  intention  to  execute  a  wrongful  act,  and  also 
actually  to  perform  their  intended  enterprise,  without  being  riot- 
ers;  as  if  a  competent  number  of  people  assembled  together  in 
order  to  carry  off  a  piece  of  timber,  to  which  one  of  the  company 
hath  a  pretended  right,  and  afterwards  do  carry  it  away. without 
any  threatening  words  or  other  circumstances  of  terror. 

The  injury  or  grievance  complained  of,  and  intended  to  be  re-    i  Hawk.  t. 
verged  or  remedied  by  such  an  assembly,  must  relate  to  some    65>8>6- 
private  quarrel  only,  or  the  redress  of  some  private  grievance  ;  for 
wherever  the  intention  of  such  an  assembly  is  to  redress  public 
grievances,  if  they  attempt  with  force  to  execute  such  their  inten- 
tions, they  are,  in  the  eye  of  the  law,  guilty  of  levying  war,  and 
consequently  of  high  treason. 

It  is  no  way  material  whether  the  act  intended  to  be  done  by    i  Hawk.  P. 
such  an  assembly  be  of  itself  lawful  or  unlawful :  as  if  a  number  of  65'*'7' 
persons  join  together  in  a  violent  and  tumultuous  manner  in  re- 
moving a  nuisance,  or  other  thing  which  may  lawfully  be  done  in 
a  peaceful  manner,  they  are  as  properly  rioters  as  if  the  act  in- 
tended to  be  done  by  them  were  never  so  unlawful. 

II.  How  they  may  be  restrained  and  punished. 

Every  sheriff  and  tinder-sheriff,  and  also  every  other  peace-  i  Hawk.  o. 
officer,  as  constables,  kc.  may,  and  ought  to  do  all  that  in  them  65<'<u'< 
lies  towards  the  suppressing  of  a  riot,  and  may  command  all 
other  persons  whatsoever  to  assist  them  therein  ;  also,  it  is  cer- 
tain that  any  private  person  may  lawfully  endeavour  to  appease 
all  such  disturbances,  by  staying  those  whom  he  shall  see  en- 
gaged therein  from  executing  their  purpose,  and  also  by  stop- 
ping others  whom  he  shall  see  coming  to  join  them  ;  for  if  pri- 
vate persons  may  do  thus  much  towards  the  suppressing  of  a 
common  affray,  surely,  a  fortiori,  they  may  do  it  towards  the  sup- 
pressing of  a  riot. 

Generally,  offences  of  this  nature  are  punished  at  the  common   1  Hawfc.  t, 
law,  as  trespasses,  by  line  and  imprisonment  only. 

Women  are  punishable  as  rioters,  but  infants  under  thn  age    i  Hawk.  c. 
»f  discretion  are  not. 


RIVERS. 

By  the  first  section  of  the  act  declaring  certain  waters,  to  bt 
public  highways,  sess.  36.  c.  47.  2  R.  L.  285.  the  rivers  are  enu- 
merated which  shall  fall  nnder  that  description ;  for  a  more  par- 
ticular account  of  which  I  shall  merely  refer  to  the  act  itself. 
It  seems  that  the  Hudson,  although  not  enumerated  in  tfc«  act,  jc«inw 
rs  a  public  highway,  even  above  tide-water. 


368  SEARCH-WARRANT. 

By  the  second  section  of  tho  act,  "  If  any  person  shall  dam 
up  or  obstruct  the  navigation  of  any  of  the  waters  in  the.  preced- 
ing section  described,  by  erecting  or  building  any  mill  or  wier. 
or  by  the  building  or  erecting  thereon  any  other  works,  or  by 
cutting  or  falling  woo<J  or  timber  in  the  same,  such  person  so 
offending  shall  forfeit  for  each  offence  the  sum  of . twenty-five 
dollars,  recoverable,  with  costs  of  suit,  by  and  for  the  use  of  any 
person  who  will  sue  for  the  same,  before  any  justice  of  the 
peace  ;  and  the  offender,  moreover,  shall  be  deemed  guilty  of  a 
misdemeanour,  and  be  prosecuted  accordingly,  by  indictment  of 
otherwise." 


SEARCH- WARRANT. 


2  Hale,  150. 
2  Hawk,  c. 
13.  v  10. 
Amendments 
Const.  U.  S. 
Art.  4, 


4  lust.  177. 
8  Hale,  113. 
150. 


4  Burns' 
Juu.  176. 


Amendments 
Con.  U.  S. 
Art.*4. 


Bell  v.  Clapp 
and  other*, 
10  Joims. 
Rep.  263. 


A  general  warrant,  to  search  in  all  suspected  places,  is  not 
good  ;  but  only  to  search  in  such  particular  places  where  the 
party  assigns  before  the  justice  his  suspicion,  and  the  probable 
cause  thereof,  for  these  warrants  are  judicial  acts,  and  must  be 
granted  upon  examination  of  the  fact :  and  if  a  justice  cannot  le- 
gally grant  a  blank  warrant  for  the  arrest  of  a  single  person, 
leaving  it  to  the  party  to  fill  up,  surely  he  cannot  grant  such 
general  warrant,  which  might  have  the  effect  of  an  hundred 
blank  warrants. 

Upon  a  bare  surmise  a  justice  cannot  make  a  warrant  to  break 
any  man's  house,  to  search  for  a  felon  or  for  stolen  goods.  But 
in  case  of  a  complaint,  and  oath  made  of  goods  stolen,  and  that 
the  party  suspects  that  the  goods  are  in  such  a  house,  and  shows 
the  cause  of  his  suspicion,  the  justice  may  grant  a  warrant  to 
search  in  those  suspected  places  mentioned  in  his  warrant,  and 
to  attach  the  goods  and  the  party  in  whose  custody  they  are 
found,  and  bring  them  before  him,  or  some  other  justice,  to  give 
an  account  how  he  came  by  them,  and  farther  to  abide  such  or- 
der as  to  law  shall  appertain. 

In  case  of  positive  proof,  a  warrant  may  be  executed  in  the 
night-time,  lest  the  offenders,  and  goods  also,  be  gone  before 
morning. 

A  warrant  must  particularly  describe  the  place  to  be  searched, 
and  the  things  to  be  seized. 

The  important  principles  on  the  subject  of  search-warrants, 
which  are  discussed  in  the  following  case,  will  be  an  excuse  for 
my  in.'ertins  it  entire. 

This  was  an  action  of  trespass  quare  clausvmfri±\i.  Sec.  The 
declaration  contained  counts  for  entering  the  plaintiff's  dwf  liing- 
house,  and  breaking  open  his  doors,  Sec.  and  also  in  trespass  de  bo- 
nis  asportatis.  &:c.  in  taking  and  carrying  away  one  hundred  l  ar- 
rels  of  flour.  The  defendants  pleaded  separately  not  guilty  :  ad 
two  of  them  pleaded  also  specially  in  justification,  that  Charles 


SEARCH-WARRANT. 

;'"/!/  i.<lian,  before,  at,  and  after,  fee.  was  one  of  the  special  justices 
of  lliu  peace  in  the  city  of  New-York,  Sec.  and  so  !>ei>iy;  jn- 
on  me  l!)lh  January,  J  IS  1  I,  at,  ike.  made  his  certain  warrai.t  in 
writing,  under  his  hand  and  seal,  directed  to  any  constable  or  mar- 
shal of  the  said  city;  reciting,  that  whereas  information  on  oath 
had  been  given  to  him,  the  said  Charles  Christian,  one  of  the 
special  justices,  fee.  by  William  Clapp,  of  the  fourth  ward,  that 
one  hundred  barrels  of  flour  had  lately  been  feloniously  taken 
and  carried  away  by  Richard  and  Isaac  Jaques,  from  the  wharf, 
fee.  and  that  the  said  one  hundred  barrels  of  fiour,  or  a  part 
thereof,  were  then  concealed  in  a  cellar  of  Gideon  Jaques,  situate, 
&c.  And  the  said  diaries  Christian,  being  such  special  justice, 
did,  in  and  by  the  said  warrant,  in  UK  name  of  the  people,  fee. 
command  and  authorize  them,  the  said  constables  and  marshals, 
fee  or  any  of  them,  with  proper  assistance,  in  the  day-time,  to 
enter  into  the  cellar  of  the  said  Gideon,  situate,  fee.  and  there 
diligently  search  for  the  said  flour,  and  if  the  same,  or  any  part 
thereof,  should  be  found,  then  the  said  constables  were,  in  and 
by  the  said  warrant,  likewise  commanded  to  bring  the  same,  so 
foiiiid,  together  with  the  said  Gideon,  or  the  person  in  whose  cus- 
tody the  same  should  be  found,  before  him,  the  said  Charles 
Christian,  or  some  other  justice  of  the  peace  of,  fee.  to  be  dealt 
with  as  the  law  directs,  fee.  which  warrant  was  delivered  to  M. 
one  of  the  defendants,  then  being  one  of  the  marshals  of  the  s,aid 
city,  to  be  executed  according  to  law  ;  by  virtue  of  which,  fee.  he 
went  to  the  cellar  t>f  the  said  Gideon  Jaques,  mentioned  in  the 
•warrant,  and  which  was  part  and  parcel  of,  and  belonging  to  the 
dwelling-house  mentioned  in  the  plaintiff's  declaration,  and  there 
finding  the  door  thereof  shut  and  fastened,  did,  in  a  friendly  and 
peaceable  manner,  demand  and  require  that  the  said  door  should 
be  opened,  which  was  then  and  there  refused  ;  and  that  there- 
upon the  said  M.,  one  of  the  defendants,  in  order  to  execute  the 
laid  warrant,  did  break  open  the  said  door,  as  it  was  lawful  fur 
him  to  do,  fee.  doing  as  little  damage  as  possible,  and  did  search, 
fee.  and  took  and  carried  away  therefrom  ninety-three  barrels  of 
flour,  being  part  of  the  said  one  hundred  barrels  mentioned  in  the 
said  warrant,  fee.  fee.  The  other  defendant  put  in  a  similar  plen. 
of  justification,  being  a  constable,  fee.  and  required  to  assist  the 
said  other  defendant  in  the  execution  of  the  warrant.  To  the 
plea  of  justification  there  was  a  general  demurrer  arid  joinder. 

Per  curiam.  The  matter  set  forth  in  the  pica  is  a  justification 
»f  the  trespass.  The  search-warrant  was  founded  on  oath,  and 
(he  information  stated  that  one  hundred  barrels  of  flour  h:td  been 
stolen  from  the  wharf,  in  the  first  ward,  by  Richard  and  Isaac 
Jaques,  and  that  the  same,  or  a  part  thereof,  was  concealed  in  a 
cellar  of  Gideon  Jaques.  The  plea  then  states,  that  the  warrant 
being  under  the  hand  and  seal  of  the  magistrate,  (.\m>  was  one  of 
the  special  justices  of  the.  city  of  New-York,  an  <>i"iicer  created 
by  ,-•.  D'-bHc  statute,)  an,d  being  directed  to  the  cousUUlts  and  tour- 

[  47   ] 


I 

. 

£70  SEARCH-WARRANT. 

shals,  authorized  and  required  them  to  enter  the  said  cellar,  iu 
the  day-time,  and  search  for  the  flour,  and  to  bring  it,  together 
with  the  said  Gideon,  or  the  person  in  whose  custody  it  might  he 
found,  before  the  justice  ;  that  in  pursuance  of  the  warrant,  the 
defendants,  the  one  heing  a  constable  and  the  other  a  marshal, 
did  go  to  the  cellar,  which  was  part  and  parcel  of  the  dwelling- 
house  of  the  plaintiff,  and,  after  being  refused  entrance,  did  open 
the  door  by  force,  and  seize  the  flour  in  as  peaceable  a  manner  as 
possible.  This,  then,  was  a  valid  warrant,  duly  executed  by  these 
officers.  The  warrant  had  all  the  essential  qualities  of  a  legal 
warrant.  It  was  founded  on  oath,  and  was  specific  as  to  place 
and  object,  and  the  stolen  goods  were  taken,  and  taken  in  as 
peaceable  a  manner  as  the  nature  of  the  case  admitted. 

InEntick  v.  Carrington,  (2  Wils.  275.  11.  St.  Tr.  313—  316.) 
Lord  Camden  admitted  a  search-warrant,  so  well  girarded,  to  be 
a  lawful  authority.  The  warrant  did  not  state  in  whom  the  pro- 
perty of  the  flour  resided,  nor  was  this  essential  to  ils  validity  :  a 
person  may  even  be  indicted  and  convicted  of  stealing  the  goods 
of  a  person  unknown.  Nor  did  it  affect  the  legality  of  the  war- 
rant, that  it  directed  the  officer  to  bring  Jarjues,  to  whom  the  cel- 
lar belonged,  or  the  person  in  whose  custody  the  flour  might  be  found. 
It  was  impossible  for  any  warrant  to  be  more  explicit  and  parti- 
cular ;  and  it  would  probably  have  been  the  duty  of  the  officer  to 
ha  ye  arrested  any  person  in  possession  of  the  stolen  goods  at  the 
place  designated,  without  any  directions  in  the  warrant,  and  to 
have  carried  him  before  the  justice  for  examination. 

Sir  Matthew  Hale,  in  one  part  of  his  treatise,  (H.  P.  C.  v.  2. 
114-,  116,  J  17.)  denies  to  the  officer  the  right  01  breaking  open 
the  door,  on  a  warrant  to  search  for  stolen  goods.  But  he  after- 
wards (ibid.  151.)  admits  this  power  in  the  officer,  if  the  door  be 
shift,  and  if,  upon  demand,  it  is  refused  to  be  opened.  This  last 
opinion  is  founded  on  the  better  reason,  for  search-warrants  are 
often  indispensable  to  the  detection  of  crimes  ;  and  they  would  be 
of  little  or  no  efficacy  without  this  power  attached  to  them.  All 
the  checks  which  the  English  law,  and  which  even  the  constitu- 
tion of  the  United  States  have  imposed  upon  the  operation  of- 
these  search-warrants,  and  with  the  manifestation  of  a  stronjr 
jealousy  of  the  abuses  incident  to  them,  would  scarcely  have  been 
thought  of,  or  have  been  deemed  necessary,  if  the  warrant  did 
not  communicate  the  power  of  opening  the  outer  door  of  a  house. 
In  the  case  of  Enticlc  v.  Carrington,  it  was  asserted  by  the  coun- 
sel for  the  defendant,  that  on  a  search-warrant,  to  search  for  stolen 
goods,  the  officer  n  >ht  break  open  doors,  fee.  And  this  power 
was  not  questioned  by  the  other  side,  nor  by  Lord  Camden,  in 
the  able  and  elaborate  view  which  he  took  of  the  legality  and  ef- 
fect of  these  warrants.  The  defendants  are  accordingly  entitled 
to  judgment  upon  the  demurrers.  Judgment  for  the  defendants 
•3  Hale,  i5i.  If  the  goods  be  not  in  the  house,  yet  it  seems  the  officer  is  ex- 
cused that  breaks  open  the  door  to  search,  because  he  searched 


SERVANTS.  37] 

by  warrant,  and  could  not  know  whether  the  goods  were  there 
till  search  made  :  but  it  seems  the  party  that  made  the  suggestion 
is  punishable  in  such  case  ;  for  as  to  him,  the  breaking  of  the  door 
is  in  eventu  lawful,  or  unlawful,  to  wit,  lawful  if  the  goods  are 
there  ;  unlawful  if  not  there. 

On  the  return  of  the  warrant  executed,  the' justice  hath  these  8H»ie,isi, 
things  to  do.  As  touching  the  goods  brought  before  him,  if  it  ap-  l 
pear  they  were  not  stolen,  they  are  to  be  restored  to  the  posses- 
sor ;  if  it  appear  they  were  stolen,  they  are  not  to  be  delivered  to 
the  proprietor,  but  deposited  in  the  hands  of  the  sheriff  or  con- 
stable, to  the  end  the  party  robbed  may  proceed,  by  indicting  and 
convicting  the  offender,  to  have  restitution.  As  touching  the 
party  that  h;  1  the  custody  of  the  goods,  if  they  were  not  stolen, 
then  he  is  to  be  discharged ;  if  stolen,  but  not  by  him,  but  by 
another  that  sold  or  delivered  them  to  him,  if  it  appear  that  he 
was  ignorant  that  they  were  stolen,  he  may  be  discharged  as  an 
offender,  and  bound  over  to  give  evidence  as  a  witness  against 
him  that  sold  them  ;  if  it  appear  he  was  knowing  they  were 
stolen,  he  must  be  committed,  or  bound  over  to  answer  the  felony. 


SERVANTS. 

The  contract  between  a  master  and  his  servant  arises  upon  the   *  niack- 
hiring.     If  the  hiring  be  general,  without  any  particular  time  li-  Co.  Lin. 43. 
mited,  the   law  construes  it   to    be   a   hiring  for  a  year ;  upon  a 
principle  of  natural  equity,  that  the  servant  shall  serve,  and  the 
master  maintain  him,  throughout  all  the  revolutions  of  the  respec- 
tive seasons,  as  well  when  there  is  work  to  be  done,  as  when  there 
is  not;*  but*  the  contract  may  be   made  for  any  larger  or  smaller 
term.  . 

If  a  person  retains  a  servant,  and  agrees  to  pay  him  so  much  by  *  Bac.  Abr. 
the  day,  month  or  year,  the  servant  may  have  an  action  against  5l 
the  master  on  the  contract,  or  against  his  executors;  and  every 
such  retainer  will  be  presumed  to  be  in  consideration  of  wages, 
unless  the  contrary  appears. 

The  master  may  maintain,  that  is,  abet  or  assist  his  servant  in    i  Black, 
ajiy  action  at  law  against  a  stranger;  whereas,  in  general,  it  is  an   Coin-42Sl' 
offence  against  public  justice  to  encourage  suits  and  animosities, 
by   helping  to  bear  the    expense  of  them,  and  is  called  in  law 
maintenance. 

A  master  also  may  bring  an  action  against  any  man  for  beating   i  Black, 
or  maiming  his  servant  ;   but  in  such  case  he  must  assign  as  a  spe-   £°<£,'.1i3.' 
cial  reason  for  so  doing,  his  own  damage  by  the  loss  of  his  service,   *  BdC<  Abr 
and  this  loss  must  be  proved  upon  the  trial  ;  and  the  action  to  be 
brought  by  the  master  is  an  action  on  the  case  per  quod  scrritium 
amisit.     But  nevertheless,  the  servant  may  maintain  an  action  of 

*  Scd  qiuere  where  the  general  mode  of  hiring  is  for  a  montb,  a  uejk 
a  day,  or  any  shorter  or  longer  tirnp. 


372  SERVANTS. 

trespass  for  the  damage  which  he  has  received  in  his  own 
3Wiis.  i?.  if  a  daughter  who  is  under  age,  whether  she  lives  with  h»-rfa- 

?66l>    Ull>    t^1'  or  Ilot5  be  seduced  and  got  with  child,  the  father  may  main- 
o^io'ins  Rep.   tain  an  action  against  the  seducer  to  recover  a  compensation  for 
10  Johns.        the  loss  of  her  service  :  and  he  may  do  so,  whatever  he  her  age, 
luj,.  us.        ;r  s]u,  jjvc(j  wjtn  njin  at  tne  tjm6i  an(i  acts  of.  service  he  proved, 
and  the  slightest  acts  of  service  will  suffice.  This  action  is  ground- 
ed upon  the  supposed  relation  of  master  and  servant  existing  be- 
tween the.  father  and  daughter. 

i  Kiaci^  And  if  any  person  do  hire  or  retain  my  servant,  being  in  my 

v'l\.  u.  167,  service,   for  which  the  servant  departeth  from  me,  and  go<-th   to 

Ke    f274!'US    serve  *ne  other,  I  may  have  an  action  lor  damages  against  both 

the  new  master  and  the  servant,  or  either  of  them  ;  brt  if  the  new 

master  did  not  km.-w  that  he  is  my  servant,  no  action  lies,  unless 

he  afterwards  refuse  to  restore  him  upon  information  and  demand 

The  reason  and  foundation  upon  which  all  this  doctrine  is  built, 

seem  to  be  the  property  that  every  man  has  in  the  service  of  his 

domestics,  acquired  by  the  contract  of  hiring,  and  purchased  Ly 

giving  them  wages. 

T  niai-k.  As  for  those  things  which  a  servant  may  do  on  behalf  of  his 

master,  they  seem  all  to  proceed  upon  this  principle,  that  the 
master  is  answerable  for  the  act  of  his  servant,  if  done  by  his  com- 
mand, either  expressly  given  or  implied.  Therefore,  if  the  ser- 
vant commit  a  trespass  by  the  command  or  encouragement  of  his 
master,  the  master  shall  be  guilty  of  it,  though  the  servant  is  not 
thereby  excused,  for  he  is  only  to  obey  his  master  in  matters  that 
are  honest  and  lawful. 

i  Black.  If  the  drawer  at  a  tavern  sells  a  man  bad   wine,  whereby   his 

Com.  430.        health  is  injured,  he  may  bring  an  action  against  the  master  ;   for 

though  the  master  did   not  expressly  order  the  servant  to  sell  it. 

to  that  person   in  particular,  yet  his  permitting  him  to  draw  and 

sell  it  at  all.  is  impliedly  a  general  command. 

4  Bac.  Abr.         Owners  o;'  ships  are.  answerable  to  freighters  for  the  acts  of  the 
Rei).6i70hl'S    masters  ana<  mariners,  in  the  same  manner  as  other  masters  are 
for  their  servants,  and  shall  answer  for  their  embezzlements,  se- 
creting of  goods,  fcc. 

i  Black.  In  the  same  manner,  whatever  a  servant  is  permitted  to  do  in 

Com.430.  jjje  usua]  course  of  his  business,  is  equivalent  to  a  general  com- 
mand. If  I  pay  money  to  a  banker's  servant,  the  banker  is  an- 
swerable for  it :  if  I  pay  it  to  a  clergyman's  or  a  physician's  ser- 
vant, whose  usual  business  it  is  not  to  receive  money  for  his  mas- 
ter, and  he  embezzles  it,  I  must  pay  it  over  ngain.  If  a  steward 
lets  a  lease  of  a  farii',  without  (lie  owner's  knowledge,  the  owner 
must  stand  to  the  bargain,  for  this  is  the  steward's  business.  A 
wife,  a  friend,  a  relation  that  use  to -transact  business  fora  man, 
are  quoad  /toe  his  servants,  and  the  principal  must  answer  for 
their  conduct  ;  for  the  law  implies  that  they  act  under  a  general 
command,  and  without  such  a  doctrine  as  this,  no  mutual  inter 
course  between  man  and  man  could  subsist  with  any  tolerubk- 
convenience. 


SERVANTS.  37tf 

If  I  usually  deal  with  a  tradesman  by  myself,  or  constantly  pay   i  Black, 
him  ready  tumuy,  f  am  not  answerable  for  what  my  servant  lakes   4^"c43jJ'br 
up  upon  trust ;  for  here  is  no  implied  order  to  the  tradesman  to   sss. 
trust  my  servant:  but.  if  I  usually  send  him  upon  trust,  or  some-  224. ' 
times  on  trust,  and  sometimes  with  ready  money,  I  am  answera-   •?|!'k'234' 
bit-  for  all  he  takes  up;  for  the  tradesman  cannot  possibly  distin- 
guish, when  he  conies  by  my  order,  and  when  upon  his  own  au- 
thority :  and  if  I  once  pay  for  what  my  servant  has  bought  upon 
trust,  without  expressing  any  disapprobation  of  it.  it  is  equivalent 
to  a  direction  to  trust  him  in  future  ;  and  1  shall  be  answerable  for 
all  he  takes  up  upon  credit,  till  an  express  order  is  given  to  the 
tradesman  not  to  give  him  further  credit. 

If  a  servant  by  his  negligence  does  any  damage  to  a  stranger,  1  Black, 
the  master  shall  answer  for  his  neglect  :  if  a  smith's  servant  lan.es 
a  horse  while  he  is  shoeing  him,  an  action  lies  against  the  master, 
and  not  against  the  servant.  But  in  these  cases,  the  damage  must 
be  done  while  he  is  actually  employed  in  the  master's  service, 
otherwise  the  servant  shall  ansAver  for  his  own  misbehaviour. 
Upon  this  principle,  if  a  servant  keeps  his  master's  fire  negligent- 
ly, so  that  his  neighbour's  bouse  is  burnt  down  thereby,  an  action 
lies  against  the  master,  because  this  negligence  happened  in  his 
service  ;  otherwise,  if  the  servant,  going  along  the  street  with  a 
torch,  by  negligence  sets  fire  to  a  house,  for  there  he  is  not  in  his 
master's  immediate  service,  and  must  himself  answer  the  damage 
personally 

So,  where  the  servants  of  A.,  with  his  cart,  run  against  another  2Saik.4i: 
cart,  wherein  was  a  pipe  of  sack,  and  overturned  the  cart  and 
spilled  the  sack,  an  action  lies  against  A.  So  where  a  carter's 
servant  run  his  cart  over  a  boy,  it  was  held  the  boy  should  have 
his  action  against  the  master  for  the  damage  he  sustained  by  this 
negligence. 

But  though  a  master  is  answerable  for  damages  occasioned  by  lEast,  i<- 
the   negligence  or  unskilfulness  of  his  servant  acting  in  the  exe- 
cution of  his  orders,  yet  he  is  not  answerable  in  trespass  for  the 
wilful  act  of  his  servant  done  in  his  absence,  and  without  his  di- 
rection or  assent,  as  by  wilfully  driving  his  carriage  against  another. 

A   having  a  house  by  the  road  side,  contracted  with  B.  to  re-  Bushv. 
pair  it,  at  a  stipulated  sum  ;  B.  contracted  with  C.  to  do  the  Avork,  ^BO"."^' 
and  C.  Avith    D.   to    furnish   the    materials.     The   servant   of  D.  r"<-  404- 
brought   a   quantity   of  lime   to  the   house,   and  placed  it  in  the 
road,    by  which  the  plaintiff's  carriage  was  overturned.      A.  was 
holden  to  be  answerable  for  the   damage   sustained,    because    all 
the  sub-contracting  parties  were  in  his  employ. 

If  a  master  command  his  servant  to  do  what  is  lawful,  and  he   4  Bac.  Abi-. 
misbehave  himself,  or  do  more,  the  master  shall  not  answer  for  S87< 
his  servant,  but  the  servant  for  himself,   for  that  it  was  his  own 
act.  , 

An  action  was  tried  at  the  sittings  after  Trinity  term,  1792,  at   i  Black. 
Guildhall,  againsf  a  prr«or>  wh«  l'"fl  knowingly  f'\  •  rha-  £,"',"  £**• 


SESSIONS. 

racter  of  a  man  to  the  plaintiff,  who  was  thereby  induced  to  ta'ke 
him  into  his  service.  But  this  servant  soon  afterwards  robbed  his 
master  of  property  to  a  great  amount,  for  which  he  was  executed, 
and  the  plaintiff  recovered  damages  against  the  defendant  to  the 
extent  of  his  loss.  This  was  an  action  of  great  importance  to  the; 
public,  and  there  can  be  no  doubt  but  it  was  founded  in  strict 
principles  of  law  and  justice. 

"  Every  contract  already  made,  or  hereafter  to  be  made,  by 
any  infant  or  other  person  coming  from  beyond  seas,  executed 
in  the  piesence  of  two  witnesses,  and  acknowledged  by  the  ser- 
vant, before  any  mayor,  recorder,  alderman  or  justice  of  the 
peace,  shall  bind  the  party  entering  into  the  same,  for  such  term 
and  for  such  services  as  shall  be  therein  specified  ;  and  every 
assignment  of  the  same,  executed  before  two  credible  subscrib- 
ing witnesses,  shall  be  effectual  to  transfer  the  same  contract  for 
the  residue  of  the  term  therein  mentioned  ;  but  no  contract  shall 
bind  any  infant  longer  than  until  his  or  her  arrival  to  the  full  age 
of  twenty-one  years,  excepting  such  as  are  or  shall  be  bound  in 
order  to  raise  money  for  the  payment  of  their  passages,  who  may 
be  bound  until  the  age  of  twenty-four  years :  Provided  the  term 
of  such  service  shall  not  exceed  four  years  in  the  whole."  Sess. 
24.  c.  I J.  s.8.  1  R.  L.  137. 

At  common  law,  a  servant  or  apprentice,  without  any  regard 
to  age,  might  bt  guilty  of  felony  in  feloniously  taking  away  the 
goods  of  their  master,  though  they  were  goods  under  their 
charge,  as  a  shepherd,  butler,  fee.  and  may  at  this  day,  for  any 
such  offence,  be  indicted  as  for  a  felony  at  common  law  ;  but  at 
common  law,  if  a  man  had  delivered  goods  to  his  servant  to  keep 
or  carry  for  him,  and  he  carried  them  away  animo  furandi,  this 
was  considered  a  breach  of  trust,  but  not  felony.  But  the  law 
is  now  altered  in  this  respect  by  statute ;  as  to  which,  vide 
LARCENY, 

The  sessions  is  authorized  to  put  out  disorderly  persons,  in 
certain  cases,  as  servants,  apprentices,  mariners,  or  otherwise. 

See  further  on  this  subject,  APPRENTICES,  and  also  SLAVES. 


SESSIONS. 

I.    General  sessions, 
II.  Special  sessions. 

I.   General  sessions. 

"  Thejustices  of  the  peace  of  each  of  the  counties  of  this  state, 
the  city  and  county  of  New-York  excepted,  or»any  three  or  more 
of  them,  of  whom  a  judge  of  the  court  of  common  pleas  shall  al- 
ways be  one,  shall  have  power  to  bold  the  courts  of  general  ses- 


SESSIONS.  J75 

•iivns  of  the  peace  in  the  said  counties  respectively."  Sess.  36.  c. 
18.  s.  1.  '2  \\.  L.  150. 

"  It  shall  he  lawful  for  the  courts  of  general  sessions  of  the 
peace  in  the  several  counties  of  this  state,  to  inquire,  by  the  oaths 
of  good  and  lawful  men,  of  the  same  counties  respectively,  liy 
whom  the  truth  may  be  the  better  known,  of  any  treason,  mis- 
prision  of  treason,  murder  or  felony,  and  of  all  other  crimes  and 
misdemeanours  whatsoever  done  or  committed  in  the  city  or 
county  for  which  such  court  shall  be  held  ;  and  all  crimes  or  mis- 
demeanours, not  punishable  with  death  or  imprisonment  in  the 
state  prison  for  life,  to  hear,  determine  and  punish  according  to 
law,  and  all  indictments"  of  or  for  any  treason,  misprision  of 
treason,  murder  or  other  felony  or  crimes,  which  is  or  shall  be 
punishable  with  death,  or  wilh  imprisonment  in  the  state  prison 
for  life,  they  shall  cause  to  be  delivered  to  the  next  supreme 
court,  or  court  of  oyer  aod  terminer,  or  jail  delivery,  to  be  held 
in  such  city  or  county,  there  to  he  determined  according  to 
law."  8.  <2." 

"The  courts  of  general  sessions  of  the  peace  shall  send  all 
other  indictments  against  prisoners  in  jail,  which  shall  not  have 
been  heaid  or  determined,  to  the  next  court  of  oyer  and  termi- 
ner and  jail  delivery,  to  be  held  in  their  respective  cities  and  coun- 
ties ;  and  whenever  the  indictments  sent  by  any  court  of  general 
sessions  of  the  peace  to  any  court  of  oyer  and  terminer  and  jail 
delivery,  shall  not  be  tried  then-iu,  but  shall  be  remitted  back  to 
the  court  from  which  they  came,  it  shall  be  lawful  for  the  said 
court  to  proceed  thereon  :  Provided  the  court  of  general  sessions 
of  the  peace  has  jurisdiction  of  the  case."  s.  3. 

"  The  sheriffs  of  the  respective  counties  of  this  state,  at.  certain 
days  and  places,  which  the  justices  of  the  peace  for  every  such 
county,  or  j«iy  two  or  more  of  them,  together  with  one  of  the 
judges  of  the  court  of  common  pleas  in  and  for  such  county,  shall 
make  known  to  them,  shall  cause  to  come  before  the  said  court? 
of  general  sessions  of  the  peace,  twenty- four  good  and  lawful 
men  of  the  same  counties  respectively,  to  inquire  for  the  people 
of  this  state,  and  the  bodies  of  the  same  counties;  and  likewise 
so  many  good  and  lawful  men  of  the  same  counties  respectively, 
duly  qualified  to  serve  as  jurors  in  the  same  counties  as  the  said 
justices  shall  direct,  by  whom  the  truth  of  the  matter  may  be  the 
better  known  and  inquired  into,  of  all  crimes  and  misdemeanours, 
to  be  tried  at  the  said  courts."  s.  4. 

"  No  process  or  pleas  whatever  before  any  of  the  said  courts  of 
general  sessions  of  the  peace,  shall  be  discontinued  by  any  new 
commission  of  the  peace,  but  the  same  shall  stand  in  full  force  : 
and  the  justices  in  such  new  commissions  shall  have  authority  in 
the  said  courts  to  continue<Jiear  and  determine  the  same  process 
and  pleas,  and  all  that  shall  depend  upon  them,  as  the  other  jus- 
tices might  have  done  if  no  new  commission  had  been  made."  "Bail,  nj.  vi. 

"  The  said  courts  of  general  sessions  of  the  peace  may,  in  their 
discretion,  let  to  bail  prisoners  urrested  and  in  jail  in  their  resper 


376 


live  cities  and  counties,  for  suspicion  of  felony,  to  appear  at  the 
next  court  having  cognisance  of  the  offence,  and  where  the  same 
ought  to  be  tried."  s.  7. 

The  times  and  places  of  holding  the  courts  of  common  pleas 
«nd  general  sessions  of  peace  in  the  different  counties,  are  speci- 
fied by  the  act,  sess.  3b.  c.  63.  to  which  I  must  refer  the  reader. 

"  If  the  court  house  or  place  of  holding  courts  in  any  county  oi 
this  state,  other  than  the  city  and  county  of  New  York,  hath  been 
or  shall  be  destroyed  by  fire  or  other  means,  or  shall,  from  any 
cause  or  calamity,  be  unsafe,  inconvenient,  or  unfit  to  hold  rourt 
in,  it  shall  and  may  be  lawful  for  the  judges  of  the  court  of  com- 
mon pleas  of  such  county,  or  a  majority  of  them,  to  fix  upon 
some  other  convenient  place,  in  the  vicinity  of  the  place  where  the 
courtis  fixed  by  law,  as  a  temporary  place  for  holding  such  court. 
and  the  same  shall  be  deemed  the  court-house  of  such  county  or 
city  to  all  intents  and  purposes,  for  the  time  being;  and  all  busi- 
ness which  shall  be  transacted  at  such  place,  shall  be  as  valid  as  if 
the  same  were  done  at  the  usual  and  customary  place."  Sess.  36. 
c.  oj.  s.  5.  2  R.  L.  146. 

The  courts  of  common  pleas  and  general  sessions  may,  in  the 
several  counties,  (Albany,  Rensselaer,  and  Washington  excepted,) 
continue  to  be  held  from  the  day  of  their  commencement,  as  ap- 
pointed by  law,  until  the  Saturday  next  following  inclusive,  s.  ti. 

"  It  shall  be  lawful  for  the  judges  and  justices  of  any  of  the  said 
courts,  to  adjourn  the  same  on  any  day  previous  to  the  expiration 
of  the  term  for  which  the  same  may  be  held  as  aforesaid,  if  in  their 
opinion  the  business  of  such  courts  will  admit  thereof."  ibid. 

"If  at  any  time  hereafter  a  sufficient  number  of  the  persons 
authorized  to  hold  any  of  the  said  courts  of  common  pleas  or 
general  sessions  of  the  peace,  shall  not  attend  for  that  purpose 
before  five  of  the  clock  in  the  afternoon  of  the  day  on  which  such 
court  is  to  be  held,  it  shall  be  lawfu^or  such  one  or  more  of  them 
as  shall  attend,  to  adjourn  the  same  court  to  the  next  day  ;  and 
if  a  sufficient  number  do  not  attend  before  five  of  the  clock  in  the 
afternoon  of  such  next  day,  then  it  shall  be  lawful  for  such  mem- 
ber or  members  of  the  same  court  as  shall  attend,  to  adjourn  the 
same  court  to  the  next  term  or  session  thereof,  or  for  the  longest 
time  that  such  court  can  by  law  be  adjourned."  s.  7. 

"  All  writs  or  process  which  shall  issue  out  of.  any  of  the  said 
courts,  may  be  tested  on  any  day  of  the  term  or  session  on  which 
such  court  shall  sit,  and  be  made  returnable  on  aiw  other  day  of 
such  term  or  session  to  which  such  court  shall  continue  to  sit,  or 
at  the  next  term  or  session."  s.  8. 

'•  The  adjournment  of  any  of  the  said  courts,  before  the  expi- 
ration of  their  respective  terms  or  sessions,  shall  not  affect  the 
teste,  return,  or  service  of  any  writs  iiciied  prior  to  such  adjourn- 
ment." s.  9. 

"  In  every  suit  or  prosecution  now,   or  which  may  hereafter 
be  depending  in  any  of  the  said  courts  of  ro>nmo"  ol>'-is  o 
ral  sessions  of  the  peace,  such  court  shall  be.  and  hereby  is  autho- 


SESSIONS.  377 

r'rced  and  empowered  to  issue  process  of  subpoena,  requiring  the 
attendance  of  any  witness  who  may  reside  in  any  part  of  this  state, 
to  testify  on  the  trial  of  the  said  cause,  fee.  although  the  said 
witness  shall  not  be  within  the  jurisdiction  of  the  said  court  when 
served  with  the  said  subpoena :  Jlnd  further^  every  witness  who 
may  be  duly  served  with  such  subpoena,  shajl  be,  and  hereby  is 
required  to  attend  at  the  time  and  place  therein  mentioned,  un- 
der the  like  penalties,  and  shall  be  liable  to  the  same  action 
which  he  would  have  incurred  or  been  liable  to  for  such  refusal 
or  neglect,  if  such  witness  had  been  within  the  jurisdiction  of 
the  said  court  at  the  time  of  the  service  of  such  subpoena  "  s.  in. 

"No  seal  shall  be  necessary  to  the  validity  of  any  subpoena 
issued  from  any  court  of  general  sessions  of  the  peace,  for 
witnesses  in  support  of  any  prosecution,  but  such  subpoena  shall 
be  issued  and  subscribed  by  the  person  prosecuting  on  behalf  of 
the  people  of  the  state  in  any  such  court."  ibid. 

"  It  shall  be  the  duty  of  the  clerk  of  each  county  to  issue  sub* 
pcenas,  under  the  seal  of  the  courts  of  common  pleas,  from  the 
courts  of  general  sessions  of  the  peace  of  the  county,  on  the 
application  of  any  person  against  whom  a  criminal  prosecution  is 
pending  in  any  such  court,  to  compel  the  attendance  of  witnesses 
who  reside  in  or  out  of  the  county,  and  for  which  several  services 
the  clerks  shall  be  entitled  to  the  same  fees  as  are  allowed  for 
the  like  process  in  the  courts  of  common  pleas."  ibid. 

A  bill  of  exceptions  does  not  lie  to  the  sessions.  3  Johht  Rep. 

The  sessions  is  a  court  of  inferior  jurisdiction,   and  cannot  23' 
grant  a  new  trial  on  the  merits.  iMms. Cas. 

Sec  further,  APPEAL,  ARRAIGNMENT,  APPRENTICES,  CERTI- 

«1RARI,    I^DICTMEST,    JURY,    S>iC. 

II.  Special  sessions. 

"If  any  petty  larceny,  misdemeanour,  breach  of  the  peace,  » 

or  other  criminal  offence  under  the  degree  of  grand  larceny,  be 
committed  within  any  of  the  counties  of  this  state,  (the  city  and 
county  of  New-York  excepted,)  and  the  person  charged  there- 
with on  oath  before  any  justice  of  the  peace,  shall  not  forthwith 
^ive  good  and  sufficient  bail  to  appear  and  answer  at  the  next 
court  of  general  sessions  of  the  peace  to  be  held  in  and  for  the 
said  county,  such  person  shall  be  committed  to  jail,  or  to  the  cus- 
tody of  a  constable  of  the  town  where  the  said  oflendcr  was  taken, 
and  in  case  such  offender  shall  not  give  bail  as  aforesaid,  within 
forty-eight  hours  after  being  so  committed,  it  shaltthen  be  lawful 
for  the  justice  by  whom  he  was  committed,  to  certify  the  cause 
•..hereof  to  any  other  two  justices  of  the  said  county,  and  require 
rhem  to  associate  with  him  to  try  such  offender,  which  they  art; 
hereby  required  to  do  :  and  the  said  justices  being  met,  are  an- 

f   43  ] 


378  SESSIONS. 

thorized  to  hear,  and  a  majority  of  them  to  determine  the  of- 
fence, and  the  said  offender  being  convicted  by  confession,  or 
the  oath  of  one  or  more  credible  witnesses,  to  impose  a  firv  not  ex- 
ceeding twenty-five  dollars,  or  imprisonment  in  the  common  jail 
of  the  county  not  exceeding  six  months,  or  both,  as  the  case  may 
require  ;  and  the  said  offender  having  paid  the  fine,  remained  his 
term  in  imprisonment,  or  both,  as  the  case  may  be,  shall  be  forth- 
with discharged  without  paying  any  fees,  if  an  inhabitant  of  the 
*;iid  county  ;  hut  if  not,  such  offender  shall  be  immediately  or- 
dered or  transported  out  of  the  said  county  to  his  last  place  of 
settlement  or  abode,  if  known  ;  and  if  any  person  so  ordered  or 
transported  shall  remain  in  the  said  county  for  forty-eight  honrs, 
or  return  thereto  within  six  calendar  months  after  such  order  or 
transportation,  he  shall  be  again  fiued  as  aforesaid,  or  confined  as 
aforesaid,  not  exceeding  three  months,  as  any  three  justices  of 
the  county,  or  a  majority  of  them,  shall  determine  :  Provided, 
That  nothing  herein  contained  shall  be  construed  to  prevent  the 
justices,  when  met  to  hold  the  said  court  of  special  sessions,  from 
trying  any  such  offender  in  less  than  forty-eight  hours,  if  such  of- 
fender shall  require  the  same."  Sess.  36.  c.  104.  s.  4.  2R.L.  507. 
Pftwer^r.  In  error  on  certiorari.  On  the  10th  March,  1805,  one  Tar- 

4  Johnlju*'  renn*ne  complained  to  three  justices  of  the  county  of  Cayuga, 
?«.  "  that  Polly  Poicers,  the  plaintiff  in  error,  had  feloniously  stolen  a 
handkerchief,  the  property  of  the  complainant.  The  accused 
appeared  before  the  justices,  and  denied  the  charge  ;  and,  on 
the  oath  of  three  witnesses,  she  was  convicted,  and  fined  five 
dollars.  Per  curtam.  The  principal  objection  to  this  case  is, 
that  the  record  does  not  show  sufficient  to  give  the  justices  juris- 
diction. No  consent,  on  the  part  of  the  prisoner,  has  been  shown 
or  averred,  as  to  any  part  of  the  proceedings.  We  are  to  intend, 
that  they  were  compulsory.  It  ought,  then,  to  have  appeared, 
that  she  had  not  given  bail  after  being  apprehended,  and  that  she 
had  forty-eight  hours  to  procure  such  bail  ;  but  the  complaint 
was  made  on  the  10th  March,  and  she  w*as  summoned  to  appear 
before  the  justices,  and  did  appear,  and  was  tried  on  the  same 
day.  The  value  of  the  handkerchief  stolen  ought  also  to  have 
been  stated  ;  for,  unless  its  value  was  less  than  twelve  dollars  and 
fifty  cents,  the  court  had  no  jurisdiction.  It  is  a  salutary  rule  with 
respect  to  inferior  courts,  that  the  cause  of  which  they  take  cog- 
nisance should  appear  to  be  within  their  jurisdiction.  These  ob- 
jections are  fatal,  and  the  conviction  must  therefore  be  quashed. 

"  The  judgments  and  orders  of  the  said  court  shall  be  executed 
by  the  sheriff  and  constables  of  the  said  county,  by  virtue  of  a 
warrant  under  the  hands  and  seals  of  the  said  justices  who  held 
iame,  or  a  majority  of  them,  commanding  the  same  to  be 
done,  and  the  charge  of  prosecuting,  punishing,  and  transporting 
every  such  offender,  shall  be  defrafed  by  the  counties  respective- 
ly where  the  offence  shall  happen,  and  be  raised  in  the  like  man- 
•i<*r  as  file  ofher  contingent  charges  of  the  county,  so  39  that  all 


SHERIFF. 

tjie  charges  for  each  offender  shall  not  exceed  live  dollars ;  and 
all  fines  imposed  by  the  said  court  shall,  when  paid,  be  applied 
towards  payment  of  the  charges  of  the  prosecution,  and  the  re- 
mainder, if  any,  paid  into  the  treasury  of  the  county."  s.  5. 


SHERIFF. 

Sheriffs  must  be  annually  appointed,  and  no  person  shall  be 
capable  of  holding  the  office  more  than  four  years  successively, 
or  of  holding  any  other  office  at  the  same  time.  Const,  of  JV.  Y. 
Art.  XXVI. 

They  must  be  substantial  freeholders  within  the  city  or  county 
for  which  they  are  appointed,  and  must  give  security  for  the 
faithful  performance  of  their  office.  Sess.  3d.  c.  67.  s.  1,  2.  1  R. 
L.  4 1 8. 

Every  sheriff  shall,  by  writing  under  his  hand  and  seal,  appoint 
an  under-sheriff  of  the  county,  who,  in  case  of  the  death  of  the 
sheriff,  shall  execute  the  office  until  another  be  appointed;  but  in 
case  of  his  inability,  the  duties,  of  the  office  shall  be  performed  by 
the  coroner.  The  sheriff  may  likewise  appoint  as  many  deputies 
as  he  may  think  proper,  besides  the  under-sheriff.  s  5. 

The  sheriff  shall  have  the  custody  of  the  jail  and  prison  in  his 
county,  and  shall  appoint  the  keeper,  s.  7. 

Sheriffs  and  jailers  shall  receive  from  any  constable  or  other  it  is  the  wipe 
officer,  without  taking  any  thing  therefor,  and  safely  keep  in  pri-  ^Vinaw"" 
son,  all  felons  indicted  or  taken  in  the  fact,  \vho  shall  be  taken  by   <  Term  Rep. 
any  constable  or  other  officer,  and  shall  not,  of  their  own  autho-  S08i 
rity,  let  out  of  prison,  on  bail,  or  otherwise,  any  person  in  their 
custody,  by   virtue  of  any  process  for  any  treason  or  felony,  or 
committed  by  special  order  of  any  court  or  justices,  upon  pain  of 
being  punished  by  fine  and  imprisonment,  and  to  answer  the  da- 
mages of  the  party  grieved,    s.  12. 

A  sheriff  or  other  officer  having  any  person  i.n  his  custody,  shyll 
not  carry  him  to  any  tavern,  ale-house,  or  other  public  victualing 
or  drinking-house,  without  the  voluntary  consent  of  such  person, 
so  as  to  charge  such  prisoner  with  any  sum  of  money  for  any 
drink,  victuals,  or  other  thing  whatsoever,  but  what  the  said  per- 
son shall  call  for  of  his  own  accord. 

And  such  officer  shall  not,  directly  or  indirectly,  demand,  take., 
or  receive,  any  other  or  greater  sum  than  what  by  law  ought  to  be 
taken  or  demanded  for  such  arrest,  taking  or  waiting  until  such 
person  shall  have  procured  an  appearance,  found  bail,  agreed 
with  his  adversary,  or  be  sent  to  jail,  nor  take  or  exact  any  other 
reward  or  gratuity  for  so  keeping  the  said  person  out  of  jail,  than 
what  such  person  shall  of  his  own  accord  voluntarily  give,  nor  take 
or  receive  any  other  or  greater  sum  for  each  night's  lodging  or 
other  expenses,  than  what  is  reasonable  and  fitting  in  such,  cases, 


380  SHERIFF. 

or  shall  be  so  adjudged  by  the  next  justice  of  the  peace,  or  at  the 
general  sessions,  and  shall  not  cause  the  said  person  to  pay  for  any 
drink,  victuals,  or  other  things,  than  what  such  person  shall  volun- 
tarily and  particularly  call  for. 

And  the  officer  or  keeper  shall  permit  him,  at  his  own  will  and 
pleasure,  to  send  for  and  have  any  beer,  ale,  victuals,  and  other 
necessary  food,  where  and  from  whom  any  such  prisoner  pleases, 
and.  to  have  and  use  such  bedding,  linen,  and  other  things,  as  such 
prisoner  shall  think  fit,  without  detaining  or  paying  for  the  same, 
or  any  part  thereof ;  and  shall  not  demand,  take,  or  receive,  any 
other  fees  than  are  allowed  by  law,  nor  any  thing  whatsoever  for 
the  chamber  rent  of  such  prison* 

And  shall  not  put  or  keep  prisoners  for  debt,  and  felons,  together 
in  the  same  room  ;  and  the  offender  against  any  thing  in  this  sec- 
tion, shall  forfeit  his  office,  and  also  treble  damages  to  the  party 
grieved,  s.  16,  17. 

It  shall  not  be  lawful  to  confine  male  and  female  prisoners,  im- 
prisoned either  civilly  or  criminally,  except  husband  and  wife,  in 
the  same  prison-room  ;  and  in  case  any  sheriff,  jailer,  or  marshal, 
shall  offend  in.  the  premises,  he  shall  be  deemed  guilty  of  a  mis- 
demeanour, and  upon  conviction  thereof,  shall  be  fined  at  the 
•discretion  of  tlie  court  before  whom  such  conviction  shall  be 
had.  s.  18. 

A  sheriff,  whilst  conveying  a  convict  to. the  state  prison,  shaU 
have  the  same  power,  and  the  like  authority,  to  demand  the  as- 
sistance o.f  any  of  the  people  of  this  state,  in  securing  every  such 
person,  as  if  stvch  sheriff  were  in  the  county  for  which  he  is  ap- 
pointed sheriff;  and  all  persons  shall  be  aiding  and  assisting  such 
sheriff,  under  the  same  penalties  as  if  such  sheriff  was  in  his  proper- 
county.  Sess.  35.  e.  1.  s.  17.  1  11.  L.  270'. 

*8^uvns'"Just°  The  sheriff  having  a  justice  of  -the  peace's  warrant  directed  to 
2 n'awk. c.  him,  shall  execute  the  same;  but  he  need  not  go  in  person  to 
13**"*'  execute  it,  but  may  authorize  apother  to  do  it.  See  SES- 

SIONS, II. 

2Ha«k.  c.  '"Also  the  sheriff,  on  summons,  is  bound  to  attend  the  sessions 
of  the  peace,  there  to  return  his  precepts,  to  take  charge  of  pri- 
soners, &iC. 

ago'.'""  JU5t'        And  't  seems  clear  from  the  general  reason  of  the  law,  which 

2  Hawk.  c.     gives  all  courts  of  record  a  kind  of  discretionary  power  over  all 

abuses  by  their  own  officers,  that  the  sheriff  is  punishable  by  the 

justices    in  sessions,  for  defaults   in   executing  their  writs    and. 

precepts. 

2  Hawk.  c.  -Every  sheriff  is  a  principal  conservator  of  the  peace  within 
his  county,  and  may,  without  doubt,  ex  officio,  award  process  of  the 
peace,  and  take  surety  for  it  ;  and  it  seems  the  better  opinion,  that 
the  security  so  taken  by  him  is  by  the  common  law  looked  on  a& 
a  recognisance  or  matter  of  record,  and  not  us  a  common  obliga 
tion  or  matter  in  p^ls  only. 


SLAVES. 


SLAVES. 

I.  n  ho  are  slaves  and  servants  within  tfte  ad  concerning  slaves 

and  servants. 
II.  Effect  of  slavery  and  rights  of  slaves. 

III.  Poiver  and  liability  of  master. 

IV.  Brin "'ing  slaves  into  the  stale,  and  indentures  of  service. 
V.  Abandoning  slaves. 

VI.  Selling  and  exporting  slaves. 
"V II.  Harbouring  and  trading  with  slaves. 
VIII.  Punishment  of  slaves  in  certain  cases. 
IX.  Duties  of  masters  in  relation  to  their  servants  under  this  act. 
X.  Manumission,  and  hoio  persons  manumitted  are  to  be  sup- 
ported. 

I.   7f  ho  are  slaves  and  servants  within  the  act  concerning  slaves  and 

servants. 

"  Every  negro,  mulatto  or  mustee,  within  this  state,  who  is 
now  a  slave  for  life,  shall  continue  such,  unless  such  Slave  shall 
be  manumitted  according  to  law,  and  the  baptizing  of  any  slave 
shall  not  be  deemed  to  be  a  manumission  of  such  slave."  Sess. 
36.  c.  88.  s.  1.  2R.  L.  201. 

"  Every  child  born  of  a  slave  within  this  state,  after  the  fourth 
day  of  July,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  ninety-nine,  shall  be  free,  but  shall  remain  the  servant  of  the 
owner  of  his  mother,  and  the  executors  or  administrators  of  such 
owner,  in  the  same  manner  as  if  such  child  had  been  bound  to 
service  by  the  overseers  of  the  poor,  and  shall  continue  in  such 
service,  if  a  male,  until  the  age  of  twenty-eight  years,  and  if  a  fe- 
male, until  the  age  of  twenty-five  years."  s.  7. 

See  post,  a  similar  provision  as  to  slaves  brought  into  the  state. 

II.  Effect  of  slavery  and  rights  of  slaves. 

"  All  marriages  contracted,  or  which  may  hereafter  be  con- 
tractod,  Avherein  one  or  more  of  the  parties  was,  were,  or  may 
be  slaves,  shall  be  considered  equally  valid  as  though  the  parties 
thereto  were  free  ;  and  the  child  or  children  of  any  such  mar- 
riage shall  be  deemed  legitimate." 

"  Provided  nothing  herein  contained  shall  be  deemed  or  con- 
strued to  manumit  any  such  slave  or  slaves."  s.  2. 

"  No  slave  shall  be  a  witness  in  any  case,  except  for  or  against 
another  slave,  in  criminal  cases."  s.  19. 

A  free  black  man  is  a  competent  witness  to  prove  facts  which  j^™*  v- 
may  have  happened  while  he  was  a  slave.  i.Tphns.K.<j>. 


382.  SLAVES. 


III.  Power  and  liability  of  master. 

"  It  shall  be  lawful  for  all  such  persons  as  reside  in  the  counties 
of  Ontario,  Steuben,  Seneca  and  Orange,  and  having  emigrated 
from  the  states  of  Virginia,  Maryland,  or  North  Carolina,  within 
seventeen  years  last  past,  who  hold  in  their  own  right  slaves, 
which  they  brought  with  them  from  either  of  the  said  states,  to 
hire  out  th,-:ir  said  slaves  to  any  citizen  of  this  state,  for  a  term  of 
time  not  exceeding  seven  years. 

"  Provided  always,  That  the  masters  of  such  slaves  shall  not  he 
exonerated  from  liability  to  maintain  any  such  slave,  who,  at  the 
expiration  of  the  term  for  which  he  shall  be  so  hired  out,  shall 
not  be  of  sufficient  ability  to  maintain  himself."  8.  8. 

"  If  any  person  shall  willingly  suffer  or  permit  his  slave,  or  such 
servant  as  aforesaid,  (i.  e.  children  of  sla>'es  manumitted  by  this 
act,  but  who  remain  servants  until  they  arrive  at  a  certain  age, 
see  infra,)  to  beg  of  others  victuals,  clothing,  or  other  neces- 
saries, such  person  shall  forfeit  twenty-five  dollars  for  every  such 
offence,  to  be  recovered  by  action  of  debt,  with  costs  of  suit,  in 
any  court  having  cognisance  thereof,  by  any  person  who  will  sue 
for  the  same,  one  half  of  which  forfeiture  shall  be  paid  to  the  pro- 
secutor, and  the  residue  to  the  overseers  of  the  poor  of  the  city  or 
town  in  which  such  offence  shall  be  committed,  for  the  benefit  of 
euch  poor."  s.  13. 

"  If  any  person  shall,  by  fraud  or  collusion,  sell,  or  pretend  to 
sell  or  dispose,  of  any  aged  or  .infirm  slave,  to  any  person  who  is 
unable  to  maintain  such  slave,  such  sale  or  disposition  shall  be 
void,  and  the  person  making  the  same  shall  forfeit  the  sum  of  fifty 
dollars  for  each  offence,  and  shall  moreover  be  deemed  the  own 
er  of  such  slave  within  the  meaning  of  the  next  preceding  sec- 
tion of  this  act,  and  which  forfeitures  shall  btt  recovered  and  ap- 
plied as  is  directed  in  the  said  section."  s.  14-. 

"  If  any  person  shall,  by  theft  or  trespass  committed  by  any 
such  slave  or  servant,  sustain  damage  to  the  value  of  twelve  dol- 
lars and  fifty  cents  or  under,  the  owner  of  such  slave,  or  the  mas- 
ter or  mistress  of  such  servant,  shall  be  liable  to  make  satisfac- 
tion for  the  same  to  the  party  injured,  to  be  recovered  by  action 
of  debt,  with  costs,  in  any  court  having  cognisance  thereof."  s.  18. 

IV.  Bringing  slaves  into  the  state,  and  indentures  of  service. 

11  No  person  held  as  a  slave  shall  be  imported,  introduced,  or 
brought  into  this  state,  on  any  pretence  whatever,  by  any  person 
coming  permanently  to  reside  within  this  state  for  the  space  ol 
nine  months,  shall  be  considered  as  having  a  permanent  residence 
therein  within  the  meaning  of  this  act,  but  it  shall  not  be  con- 
strued to  extend  to  such  persons  as  may  reside  within  this  state 
for  a  shorter  period  :  and  if  any  person  so  held  as  a  Slave,  shall 


STAVES.  333 

be  so  imported,  introduced,  or  brought  into  this  state,  contrary  to 
the  true  intent  and  meaning  of  this  act,  he  shall  be,  and  is  hereby 
declared  free  ;  and  any  slave  who  shall  have  been  imported,  in- 
troduced, or  brought  into  this  state  contrary  to  the  foregoing  di- 
rections, since  the  first  day  of  May,  1810,  shall  be,  and  is  hereby 
declared  free."  s.  5. 

"  No  indenture,  contract,  or  bond,  conditioned  for  personal 
service,  hereafter  entered  into  or  made,  by  any  person  who  has 
been  holden  or  possessed  as  a  slave  by  any  person  without  this 
state,  shall  be  in  any  manner  obligatory,  within  this  state,  on  the 
person  so  bound  to  service,  but  the  same  is  hereby  declared  to  be 
utterly  void  ;  and  if  any  person,  so  having  been  holden  as  a  slave, 
shall  be  indented  or  bound,  contrary  to  the  intent  of  this  act,  he 
or  she  shall  thereafter  be  free:  and  further,  this  section  shall  ap- 
ply to  every  such  indenture,  contract  or  bond,  made  or  entered 
into  since  the  thirtieth  day  of  March,  1810;  and  the  same  shall 
likewise  be  utterly  void,  in  like  manner  as  if  made  or  entered 
into  since  the  passing  of  this  act."  s.  6. 

"  When  any  slave  shall  have  been,  or  shall  hereafter  be  brought 
or  imported  into  this  state,  by  any  person  coming  into  this  state, 
with  intent  to  reside  permanently  therein,  and  who  shall  have  re- 
sided without  this  state,  and  also  have  owned  such  slave,  at  least 
during  one  year  next  preceding  the  time  when  such  person  shall 
have  come,  or  may  hereafter  come  to  reside  permanently  within 
this  state  ;  then,  and  in  such  case,  every  such  slave,  if  born  after 
the  fourth  day  of  July,  in  the  year  of  our  Lord  1799,  shall  be 
free,  but  shall  remain  the  servant  of  him  or  her  who  was  before 
the  owner  of  such  slave,  and  the  executors  and  administrators  of 
such  owner,  in  the  same  manner  as  if  such  child  had  been  bound 
to  service  by  the  overseers  of  the  poor,  and  shall  continue  in  such 
service,  if  a  male,  until  the  age  of  twenty-eight  years  ;  and  if  a 
female,  until  the  age  of  twenty-five  years."  s.  26. 

V.  Abandoning  slaves. 

"The  children  of  slaves,  born  between  the  fourth  day  of  July, 
1799,  and  the  thirty-first  day  of  March,  1804,  and  which  shall 
have  been  duly  abandoned  by  their  owners  previous  to  the  last 
mentioned  day,  shall  be  continued  to  be  provided  for  at  the  ex- 
pense of  this  state,  according  to  the  then  existing  laws  thereof;  and 
no  contract  by  any  overseers  of  the  p»or,  for  the  support  of  any 
person  so  abandoned,  made  before  the  twenty-sixth  day  of  March, 
1 802,  according  to  the  provisions  of  the  then  existing  statutes  re- 
lative to  slaves,  shall  be  affected  by  this  act,  but  the  same  shall  be 
governed  by  the  statutes  then  in  force,  any  thing  herein  contain- 
ed to  the  contrary  notwithstanding. 

"  Provided,  that  it  shall  be  lawful  for  any  person  entitled  to  the 
service  of  any  person  hereafter  to  be  born  of  a  slave,  or  who  shallt 
have  been  born  of  a  slave  since  the  fourth  day  of  July,  1799,  at 


384  SLAVES. 

any  time  to  abandon  any  male  child  after  it  shall  arrive  to  the  age 
of  twenty-one  years,  or  if  a  female,  to  the  age  of  eighteen  years  ; 
provided  that  the  person  entitled  to  such  service  shall,  at  or  im- 
mediately before  such  abandonment,  obtain  a  certificate,  si^nrcl 
by  the  overseers  of  the  poor  of  such  city  or  town  where  such 
person  shall  reside,  certifying  that  such  child,  if  a  male,  appears 
In  be  of  the  age  of  twenty-one  years,  and  if  a  female,  of  the  age 
of  eighteen  years,  and  of  sufficient  ability  to  provide  for  himself 
or  herself;  and  shall  cause  such  certificate  to  be  registered  in  thr 
office  of  the  clerk  of  such  city  or  town."  s.  12. 

VI.  Selling  and  exporting  slaves. 

By  s.  9-  persons  who  have  resided  ten  years  within  the  state, 
and  are  about  to  remove  permanently,  may  carry  with  them  such 
slaves  as  shall  have  been  their  property  during  ten  years  next 
preceding,  after  making  proof  of  that  fact,  and  obtaining  a  li- 
cense from  a  judge  of  the  common  pleas  :  but  this  does  not  ex- 
tend to  servants  or  slaves  for  a  term  of  years  ;  and  a  penalty  oi' 
two  hundred  and  fifty  dollars  is  imposed  on  masters  of  vessels  who 
take  away  slaves  for  whose  exportation  no  license  has  been  ob- 
tained. And  s.  10.  makes  false  swearing  on  any  oath  or  deposi- 
tion made  or  taken  by  virtue  of,  or  pursuant  to  this  act,  perjury. 
By  s.  11.  travellers  passing  through  the  state  may  take  away 
slaves  that  they  have  brought  with  them  into  the  state,  and  any 
inhabitant  of  this  state,  going  a  journey  to  any  other  part  of  the 
United  States,  may  carry  with  him  any  slave  or  servant,  but  must 
bring  him  back  under  a  penalty,  or  prove  that  he  could  not  be 
brought  back,  by  reason  of  some  unavoidable  accident. 

By  s.  23.  if  any  person  within  this  state  shall,  under  any  colour 
or  pretext,  sell  as  a  slave,  or  transfer  for  any  period  whatever,  any 
person  who  shall  hereafter  be  imported  or  brought  into  this  state 
as  a  slave,  he  is  subjected  to  a  penalty  of  two  hundred  and  fifty 
dollars,  and  every  person  so  imported  or  brought  into  this  state. 
and  sold  contrary.to  the  true  intent  and  me'aning  of  this  act,  shall 
be  free. 

Sable  T.  It  has  been  held,  that  the  sale  of  the  services  of  a  slave,  cither 

"jonrrsJCa*.  ^or  an  indefinite  period,  or  for  a  length  of  time  equal  to  the  value 
7$.  Fish  ».  of  the  life  of  the  slave,  is  equivalent  to  a  sale  of  the  slave  ;  as 
2  Johns.  Cas.  where  a  slave,  aged  eighteen,  was  sold  for  a  term  of  twenty  years  ; 
Bi'imer*  *'  suc^  sa^e  being  an  evasion  of  the  act. 

3Caioes:Rcp.  But  a  sale  of  an  imported  slave  by  persons  acting  as  executor?. 
Sable  v.  assignees,  or  trustees  of  the  original  owner,  or  under  an  execu 


Hitchcock.      tiQn  against  his,  estate,  is  valid. 

2  Johns.  Cas.  '  '  .  .  , 

7<j.  But  a  subsequent  sale  by  the  purchaser  is  void. 

b<S>arT'Pca'       By  s-  2-1--  any  person  exporting  or  attempting  to  export  a  slave. 

jijoimi.        i«  subjected  to  a  pena'^v  of  two  hundred  and  fifty  do]! 


SLAVES. 

VII.  Harbouring  and  trading  with  slaves. 

"  If  any  person  shall  employ,  harbour,  conceal,  or  entertain  any 
slave,  or  such  servant  as  aforesaid,  knowing  such  slave  or  servant  to 
belong  to  any  other  person,  without  the  consent  of  such  owner,  such 
person  shall  forfeit  to  the  owner  of  such  slave  or  servant,  the  sum 
of  twelve  dollars  and  fifty  cents  for  every  twenty-four  hours,  and 
in  that  proportion  for  a  greater  or  less  time,  whilu  such  slave 
or  servant  shall  have  been  so  employed,  harboured,  concealed, 
or  entertained,  but  such  forfeiture  shall  no';,  in  the  whole,  exceed 
the  value  of  such  slave,  or  of  the  service  such  owner  is  entitled  lo 
receive  from  such  servant:  And  further,  if  any  person  shall  be 
guilty  of  harbouring,  entertaining,  or  concealing,  or  of  assisting 
to  convey  away  any  such  slave  or  servant,  and  such  slave  or  ser- 
vant be  lost  or  die,  such  person  shall  forfeit  to  the  owner  of  such 
slave  or  servant  the  value  of  such  slave,  or  of  the  service  such 
owner  shall  be  entitled  to  receive  from  such  servant ;  all  of 
which  forfeitures  may  be  recovered  by  action  of  debt,  with  costs 
of  suit,  in  any  court  having  cognisance  thereof."  s.  15. 

"  If  any  person  shall  trade  or  traffic  with  any  auch  slave  or  ser- 
vant, either  in  buying  or  selling,  without  the  consent  of  the  owner 
of  such  slave,  or  the  master  or  mistress  of  such  servant,  such 
person  shall,  for  every  such  offence,  forfeit  the  treble  value  of  the 
articles  so  bought  or  sold,  and  also  the  sura  of  twelve  dollars  and 
fifty  cents,  to  the  owner  of  such  slave  or  servant,  to  be  recovered, 
with  costs,  against  such  person,  by  action  of  debt  in  any  court  hav- 
ing cognizance  thereof,  and  every  contract  so  made  with  such 
slave  or  servant,  shall  be  void."  s.  16. 

"  If  any  person  shall  sell  any  rgm  or  other  strong  liquor  to  any 
such  slave  or  servant,  without  the  consent  of  the  owner  of  such 
slave,  or  the  master  or  mistress  of  such  servant,  such  person  shall 
forfeit,  for  every  such  offence,  the  sum  of  five  dollars,  to  be  reco- 
vered in  the  name  of  the  owner  of  such  slave  or  servant,  with 
costs,  by  action  of  debt  in  any  court  having  cognizance  thereof, 
the  one  half  of  which  forfeiture,  when  recovered,  shall  be  paid  by 
such  owner  to  the  overseers  of  the  poor  of  the  city  or  town  where 
such  offence  shall  be  committed."  s.  17. 

VIII.  Punishment  of  slaves  in  certain  cases. 

u  Where  any  slave  shall  hereafter  be  convicted  in  the  supreme 
court,  or  in  any  court  of  oyer  and  terminer  and  jail  delivery,  or. 
general  sessions  of  the  peace,  of  any  crime  not  punishable  with 
death,  or  with  imprisonment  in  the  state  prison  for  life,  it  shall  be 
lawful  for  the  master  or  mistress  of  such  slave,  to  cause  such  slave, 
to  be  transported  out  of  this  state  :  Provided,  That  the  court  be- 
fore which  such  conviction  may  be  had,  shall  have  previously 
certified,  that  the  crime  whereof  such  slave  shall  be  convicted,  i- 

[  49  ] 


386  SLAVES. 

of  such  a  nature  that  transportation  would  be  a  praper  punish-  . 
ment:  Jlnd  provided  also,  That  such  court  may  also  inflict  such 
other  punishment  on  such  slave,  as  from  the  nature  of  the  offence, 
and  the  course  of  the  law,  they  may  judge  proper."  s.  '20. 

"  If  any  such  slave  shall  strike  a  white  person,  it  shall  be  lawful, 
on  proof  of  the  same  by  the  oath  of  such  person,  for  any  justice  of 
the  peace  to  commit  such  slave  to  jail,  who  shall  thereupon  be 
tried  and  punished  as  in  cases  of  petit  larceny,  according  to  the 
act,  entitled, '  An  act  declaring  the  powers  of  the  courts  of  gene- 
ral sessions  of  the  peace,  and  the  powers  and  duties  of  justices  of 
the  peace  ;'  but  in  all  other  cases  such  slave  shall  have  the  privi- 
lege of  trial  by  jury."  s.  21. 

IX.  Duties  of  master f  in  relation  to  servants  under  this  act. 

Every  person  entitled  to  the  services  of  a  child  born  of  a  slave 
within  this  state  after  the  4th  July,  1799,  "  shall  use  all  proper 
and  reasonable  means  to  cause  such  child  to  be  taught  reading,  so 
as  to  be  able  to  read  the  holy  scriptures,  previous  to  such  child's 
arriving  to  the  age  of  twenty-one  years;  and  if  such  person,  so 
entitled  to  such  service,  shall  neglect  to  use  all  proper  and  reason- 
able means  to  give  such  instruction  as  aforesaid,  having  regard  to 
all  the  circumstances  of  the  case,  then,  and  in  every  such  case  of 
neglect,  such  servants  so  neglected  shall  be  released  from  their 
servitude  when  they  arrive  to  the  age  of  twenty-one  years,  any 
thing  in  any  former  law  to  the  contrary  notwithstanding;  and  all 
complaints  by  any  such  servant,  arising  under  this  section,  against 
his  said  master,  and  all  complaints  by  any  such  master  against  such 
servant,  shall  be  heard,  tried  and  determined  in  like  manner,  and 
with  like  effect,  as  complaints  by  and  between  master  and  appren- 
tices under  the  laws  of  this  state."  s.  7. 

By  s.  29.  slaves  imported  into  this  state,  under  the  26th  section 
of  the  act,  (supra,  IV.)  are  in  like  manner  to  be  taught  to  read, 
subject  to  the  same  penalty  for  neglect,  as  in  s.  7- 

"  Every  person  being  an  inhabitant  of  this  state,  who  shall  be 
entitled  to  the  service  of  a  child  born  after  the  4th  day  of  July, 
1799,  shall,  within  nine  months  after  the  birth  of  such  child,  cause 
to  be  delivered  to  the  clerk  of  the  city  or  town  whereof  such  per- 
son shall  be  an  inhabitant,  a  certificate  in  writing,  containing  the 
name  and  addition  of  such  person,  and  the  name,  age,  and  sex, 
of  the  child  so  born;  which  certificate,  whether  the  same  be  de- 
livered before  o¥  after  the  said  nine  months,  shall  be,  by  the  said 
clerk,  recorded  in  a  book,  to  be  by  him  for  that  purpose  provided, 
and  such  record  thereof  shall  be  good  evidence  of  the  age  of  such 
child,  and  the  clerk  of  such  city  or  town  shall  receive  from  said 
person  twelve  cents  for  every  child  so  registered  ;  and  if  any 
person  shall  neglect  to  deliver  such  certificate  to  the  said  clerk, 
within  the  said  nine  months,  such  person  shall  forfeit  and  pay,  for 
every  such  offence,  five  dollars,  and  the  further  =:>m  of  one  do1- 


SLAVES.  387 

iar  for  every  month  such  person  shall  neglect  to  deliver  the  same, 
to  be  sued  for  and  recovered  by  the  clerk  of  the  city  or  town  in 
which  such  person  shall  reside,  the  one  half  to  the  use  of  such 
clerk,  and  the  residue  for  the  use  of  the  poor  of  such  city  or 
town."  s.  22. 

By  s,  28.  every  person  importing  a  slave  under  s.  26.  (supra, 
IV.)  "  shall,  within  six  months  thereafter,  cause  to  be  filed  such 
certificate  as  is  required  in  and  by  the  22d  section  of  this  act,  in 
the  manner  therein  directed;  and  in  case  of  neglect  to  deliver 
such  certificate  as  aforesaid,  such  person  shall  forfeit  and  pay,  for 
every  such  offence,  five  dollars.,  and  the  further  sum  of  one  dol- 
lar for  every  month  such  person  shall  neglect  to  deliver  the  same, 
to  be  sued  for  and  recovered  by  tke  clerk  of  the  city  or  town  in 
which  such  person  shall  reside,  to  the  use  of  the  poor  of  such  city 
or  town." 

X.  Manumission,  and  how  persons  manumitted  are  to  le  supported. 

"It  shall  be  lawful  for  the  owner  of  any  slave  to  manumit  such 
slave  by  last  will  or  testament,  or  by  any  certificate  or  writing 
for  that  purpose  ;  but  if  such  slave,  at  the  time  of  such  manu- 
mission, be  above  the  age  of  forty-five  years,  or  within  that  age, 
and  not  of  sufficient  ability  to  provide  for  his  or  her  support,  the 
owner  of  such  slave,  and  the  heirs,  executors,  administrators  and 
assigns  of  such  owner,  shall  respectively  be  liable  for  the  mainte- 
nance of  such  slave,  in  case  such  slave  shall  become  a  charge  to 
•any  city  or  town  within  this  state  ;  and  the  overseers  of  the  poor 
of  any  such  city  or  town  shall  and  may,  from  time  to  time,  reco- 
ver the  amount  of  the  monies  expended  for  the  maintenance  of 
such  slave  from  such  owner,  his  heirs,  esecutors,  administrators 
or  assigns,  by  action  of  debt,  or  by  information  in  any  court  having 
cognizance  thereof: 

"  Provided,  however,  That  if  the  owner  of  such  slave,  at  or  imme- 
diately before  the  time  of  such  manumission,  shall  obtain  a  certi- 
ficate signed  by  the  overseers  of  the  poor  of  the  city  or  town  where 
such  owner  shall  reside,  or  the  major  part,  or  if  in  the  cities  of 
New-York  or  Albany,  by  the  mayor  and  recorder  of  the  said  cities 
respectively,  certifying  that  such  slave  appears  to  be  under  the 
age  of  forty-five  years,  and  of  sufficient  ability  to  provide  forhim- 
self  or  herself,  and  shall  cause  such  certificate  to  be  registered  in 
the  office  of  the  clerk  of  such  city  or  town,  such  certificate,  or  the 
registery  thereof,  shall  be  conclusive  evidence  of  the  facts  there- 
in contained,  and  forever  exonerate  such  owner  and  his  represen- 
tatives from  the  maintenance  of  such  slave  ;  afhd  in  case  of  tlic 
refusal  of  such  overseers,  or  of  the  said  mayor  and  recorder,  to 
grant  such  certificate,  such  owner  may  apply  for  the  same  to  the 
court  of  general  sessions  of  the  peace  of  the  city  or  county  in 
which  such  owner  shall  reside,  giving  ten  days  notice  of  such 
application  to  the  said  overseers,  or  mayor  and  recorder;  and  iT 


SLAVES. 

such  certificate  be  granted  by  such  court,  the  same  shall  be  as 
effectual  as  if  signed  by  such  overseers,  mayor  and  recorder,  and 
court,  to  grant  or  refuse  such  certificate  according  to  the  truth  of 
the  case  : 

"dnd  further,  it  shall  be  lawful  for  the  owner  of  a  child  born  a 
slave,  to  manumit  such  child,  and  if  such  owner  shall  obtain  a  cer- 
tificate from  the  persons  before  mentioned,  setting  forth  that  the 
parent  or  parents  of  such  child  is  or  are  able  and  '.villing  to  main- 
tain and  provide  therefor,  such  certificate  shall  in  like  manner  ex- 
onerate such  owner  and  his  representatives  from  the  future  main- 
tenance of  the  person  so  manumitted  ;  provided  such  certificate 
shall  be  registered  as  herein  before  directed.'5  s.  3. 

"  All  the  manumissions  of  slaves  made  by  the  people  called 
Quakers,  and  others,  before  the  9th  day  of  March,  in  the  year  of 
our  Lord,  1798,  although  not  in  strict  conformity  to  the  statutes 
then  in  force  relating  to  «uch  manumissions,  shall  be  valid  from  the 
time  the  same  were  made :  Provided,  That  every  owner  of  any 
slave  so  manumitted,  and  the  heirs,  executors,  administrators  and 
assigns  of  such  owner,  shall  be  liable  for  tha  maintenance  of  such 
slave,  in  case  such  slave  hath  or  shall  become  a  charge  to  any  city 
or  town  within  this  state,  and  from  time  to  time  be  subject  to  suits 
by  the  overseers  of  the  poor  for  monies  expended  by  any  such 
city  or  town,  in  the  same  manner  as  is  provided  by  the  preceding 
section  of  this  act."  s.  4-. 

"  All  persons  heretofore  manumitted  by  this  state,  and  former- 
ly the  slaves  of  persons  whose  estates  have  been  confiscated  or 
forfeited,  and  who  were  slaves  at  the  time  of  such  confiscation  or 
forfeiture,  and  who  then  and  since  have  resided,  and  still  reside 
within  this  state,  and  are  unable  to  support  themselves,  shall  also, 
in  like  manner,  be  maintained  as  paupers  by  the  overseers  of  the 
poor- of  the  city  or  town  in  which  they  shall  reside,  at  the  expense 
of  this  state,  and  the  accounts  of  the  said  overseers  for  such  ex- 
pense, being  certified  and  approved  by  the  mayor  of  such  city,  or 
by  the  supervisor  and  a  majority  of  the  justices  of  such  town,  shall 
be  paid  by  the  treasurer  of  this  state  on  the  warrant  of  the  comp- 
troller in  favour  of  such  overseers,  not  exceeding  the  rate  of  three 
dollars  per  month."  s.  25. 

"  It  shall  be  lawful  for  the  owner  of  any  slave  brought  or  im- 
ported into  this  state,  to  manumit  such  slave  in  the  same  manner, 
and  upon  the  same  terms,  as  if  such  slave  had  been  born  in  this 
state,  and  not  otherwise  ;  provided  the  person  bringing  or  import- 
ing such  slave  shall  have  come  into  this  state  with  intent  to  reside 
permanently  therein,  and  shall  have  resided  without  this  state,  and 
also  have  owned  such  slave  at  least  during  one  year  next  preced- 
ing the  importing  or  bringing  in  such  slave."  s.  '21. 


STRAYS. 


STRAYS. 

By  the  act  concerning  strays,  sess.  36.  c.  21.  2R.  L.  231. 
ki  Every  person  who,  at  any  time  hereafter,  between  the  first 
day  of  November  and  the  first  day  of  April,  in  any  year,  shall 
have  any  strayed  neat  cattle,  horses,  or  sheep,  upon  his  or  her 
enclosed  lands,  shall,  within  twenty  days  after  the  coming  o: 
strayed  neat  cattle,  horses,  or  sheep,  into  his  or  her  enclosed  laud, 
deliver  unto  the  clerk  of  the  city  or  town  where  such  neat  cat- 
tle, horses,  or  sheep,  shall  happen  to  be,  a  note  in  writing,  con- 
taining their  several  ages,  colours,  and  marks,  natural  and  artifi- 
cial, as  near  as  may  be,  together  with  his  or  her  name  and  place 
of  abode  ;  and  sucli  clerk  shall,  on  receipt  of  every  such  note, 
make  a  full  entry  thereof  at  large,  in  a  book  to  be  provided  by 
him  for  that  purpose;  and  such  clerk  shall  have,  for  making  such 
entry,  the  sum  of  six  cents  per  head  for  all  the  neat  cattle  and 
horses,  and  the  sum  of  three  cents  for  each  sheep,  so  entered  as 
aforesaid,  to  be  paid  to  him  by  the  person  delivering  such  note ; 
and  the  person  delivering  such  note  shall  have,  for  doing  the 
same,  nine  cents  per  head  for  all  neat  cattle  and  horses,  and  three 
cents  for  every  sheep  described  in  such  note,  and  may  detain 
such  cattle,  horses,  and  sheep,  until  the  owner  thereof  shall  ap- 
pear and  pay  the  same,  together  with  the  sum  paid  or  due  to  the 
clerk  for  the  said  entry,  and  all  reasonable  charges  for  keeping 
the  same  cattle,  horses,  or  sheep  :  Provided  ahvays,  That  such 
reasonable  charges  be  first  ascertained  and  determined  by  the 
fence-viewers,  or  by  the  town-clerk  of  such  city  or  town,  unless 
the  owner  and  the  person  claiming  such  charges  can  otherwise 
agree."  s.  1. 

"  Every  person  who  shall  have  kept  any  such  strayed  neat  cat- 
tle, horses,  or  sheep,  and  recorded  the  same  as  aforesaid,  shall, 
between  the  first  day  of  May,  and  the  twentieth  day  thereof,  give 
notice  to  one  of  the  assessors  of  the  town  in  which  such  neat  cat- 
tle, horses,  or  sheep,  may  be,  whose  duty  it  shall  be  to  ascertain, 
according  to  the  best  of  his  knowledge  and  judgment,  the  reasona- 
ble charges  of  keeping  every  such  neat  cattle,  horses,  or  sheep, 
and  give  the  person  applying  for  the  same  a  certificate  of  such 
charges,  for  which  the  said  assessor  shall  be  paid,  by  ttye  person 
applying  for  the  same,  six  cents  per  mile  for  every  mile  the  said 
assessor  shall  be  obliged  to  travel  from  his  house  to  the  place 
where  such  stray  is  kept,  to  do  the  same,  and  twenty-five  cents 
for  said  certificate."  s.  2. 

"If  no  owner  shall  appear  to  claim  the  said  cattle,  horses,  or 
sheep,  on  or  before  the  first  day  of  May  next  after  such  entrf  so 
made,  or  if  the  owner  shall  refuse  or  neglect  to  pay  for  giving 
such  notice  and  making  such  entry,  obtaining  such  certificate,  and 
keeping  such  cattle,  horses,  or  sheep,  then  the  possessor,  or  the 
person  who  shall  have  kept  them,  and  given  such  notice  as  afort 


390  f  SUMMONS. 

said,  is  hrreby  authorised  to  sell  the  same  at  vendue,  to  the  high- 
est bidder,  first  giving  at  least  twenty  days  notice  of  the  time  and 
place  of  such  sale,  by  advertisement  to  be  put  up  at  three  of  the 
most  public  places  in  the  city  or  town  where  the  said  neat  cattle, 
horses,  or  shtep,  have  been  kept;  and  out  of  the  monies  arising 
from  such  sale,  to  retain  in  his  or  her  hands,  for  his  or  her  own 
use,  the  sums  due  as  aforesaid,  for  such  notice,  entry,  and  obtain- 
ing such  certificate,  and  also  the  sum  specified  in  said  certificate 
for  keeping  the  same  cattle,  horses,  or  sheep,  and  no  more,  and 
shall,  upon  demand,  pay  the  residue,  after  deducting  the  reasona- 
ble charges  of  such  sale,  to  the  owner  of  the  same  cattle,  horses, 
or  sheep  ;  but  if  the  owner  of  such  cattle,  horses,  or  sheep,  shall 
not  appear  and  demand  the  same  within  one  year  after  such  sale, 
he  or  she  shall  be,  arid  hereby  is  forever  precluded  and  barred  from 
recovering  any  part  of  the  money  arising  from  such  sale  ;  and  the 
same  money,  after  such  deduction  as  aforesaid,  shall,  in  such  case, 
be  paid  to  the  overseers  of  the  poor  of  such  city  or  town,  for  the 
use  of  the  poor  thereof;  and  the  receipt  of  the  said  overseers 
shall  be  a  legal  discharge  to  the  possessor  or  person  who  shall  have 
kept  such  cattle,  horses  or  sheep  ;  and  if  such  possessor  shall  not, 
within  thirty  days  after  the  expiration  of  the  said  year,  pa\  in 
remaining  money  arising  from  such  sale,  after  the  deduction  aK. re- 
said,  to  the  overseers  of  the  poor  of  the  city  or  town  where  such 
neat  cattle,  horses,  or  sheep,  were  taken. up  and  sold  as  aforesaid, 
he  or  she  shall  forfeit  double  the  sum  so  remaining  in  his  or  her 
hands,  for  the  use  of  the  poor  of  the  same  place,  to  be  recovered, 
over  and  above,  and  together  with  the  said  remaining  money, 
with  costs  of  suit,  by  the  overseers  of  the  poor  of  the  same  city 
or  town  for  the  time  being,  by  action  of  debt,  in  any  court  having 
cognizance  thereof."  s.  3. 

"  The  book  to  be  provided  and  kept  by  the  respective  clerks 
of  each  city  or  town  as  aforesaid,  shall  always  by  them  be  kept  free 
ajid  open  for  any  person  to  search  therein,  and  for  which  search 
no  fee  shall  be  taken  by  such  clerk,  on  penalty  of  forfeiting  one 
dollar  for  every  offence,  to  be  recovered  by  the  party  aggrieved, 
with  costs  of  suit,  before  any  justice  of  the  peace  in  the  county 
'•vhere  the  offence  shall  be  committed,"  s.  4, 


SUMMONS. 

4 Burns'Jiist.  In  all  legal  proceedings,  the  person  complained  of  ought  to 
have  notice  of  the  charge  laid  against  him,  and  to  have  an  oppor- 
tunity of  being  heard  in  his  own  defence.  Consequently,  where 
a  person  is  accused  before  the  justices,  they  ought  to  summon 
the  party  to  appear,  or  issue  their  warrant  to  bring  him  before 
them.  The  manner  of  conveying  the  parties  is  sometimes  di- 
rected by  the  acts  creating  the  respective  offences,  which  there- 


SURETY  OF  THE  PEACE.  39 1 

fore  ought  to  be-pursued  accordingly.  In  other  cases,  where  it  is 
left  discretionary  in  the  justices,  it  seemeth  most  agreeable  to  the  * 
mildness  of  our  laws  to  put  the  party  to  no  more  inconvenience 
than  needs  must  ;  and  therefore,  where  the  case  will  bear  it,  a 
summons  seems  more  apposite  than  a  compulsory  process.  But 
in  cases  of  sureties  of  the  peace,  petty  larcenies  and  other  felo- 
nies, and  generally  where  the  people  is  party,  and  also  in  cases 
between  party  and  party  where  the  body  of  the  offender  is  liable, 
a  warrant  is  the  regular  process,  and  not  a  summons. 

In  the  summons  it  is  usual,  and  upon  many  accounts  conve-   4Burns'jo»t. 
nient,  to  fix  not  only  a  day,  but  a  particular  time  of  the  day,   for  344' 
tir    .  -i'ty's  appearing  ;  but  if  he  shall  appear  at  the  time,  and  the 
justice  shall  not  attend,  he  is  not  to  go  away,  but  must  wait  dur- 
ing the  remaining  part  of  the  day,  for  many  things  may  happen 
to  hinder  the  justice's  immediate  attendance. 


SURETY  OF  THE  PEACE. 

I.  For  what  cause  surety  of  the  peace  shall  be  granted. 
II.  Jit  whose  request,  and  against  whom  it  shall  be  granted, 

III.  In  what  manner  it  shall  be  granted  and  executed. 

IV.  Of  the  recognisance. 

V.   How  the  recognisance  may  be  forfeited. 
VI.  How  the  recognisance  may  be  discharged.  «    ' 

I.  For  ivhat  cause  surely  of  the  peace  shall  be  granted. 

By  the  1st  section  of  the  act  declaring  the  powers  and  duties  of 
justices  of  the  peace,  sess.  36.  c.  104-.  2  R.  L.  50(i.  Justices  are 
authorized  "to  cause  to  come  before  them  all  persons  who  shall 
threaten  to  break  the  peace,  or  who  be  not  of  good  fame,  to  find 
sufficient  security  for  the  peace,  or  for  their  good  behaviour,  or 
both,  as  the  case  may  require  ;  and  if  they  refuse  to  find  such 
security,  to  commit  them  to  prison  until  they  shall  find  the  same." 

Any  justice  of  the  peace  may,  according  to  his  discretion,  i  Hawk.  P. 
bind  all  those  to  the  peace,  who  in  his  presence  shall  make  any 
affray,  or  shall  threaten  to  kill  or  heat  any  person,  or  shall  con- 
tend together  with  hot  words,  or  shall  go  about  with  unusual 
weapons  or  attendance,  to  the  terror  of  the  people  ;  and  also  all 
such  persons  as  shall  be  known  by  him  to  be  common  barrators  ; 
and  also  all  who  shall  be  brought  before  him  by  a  constable  for 
a  breach  of  the  peace  in  the  presence  of  such  constable  ;  and  all 
such  persons  who,  having  been  before  bound  to  keep  the  peace, 
shall  be  convicted  of  having  forfeited  their  recognisance. 

It  seems  clear,  that  wherever  a  person  has  just  cause  to  fear  J, 

V. 

that  another  will  burn  hig  house,  or  do  him,  a  corporal  hurt,  as  by 


392  SURETY  OF  THE  PEACE. 

killing  or  beating  him,  or  that  he  will  procure  others  to  do  him 
such  mischief,  he  may  demand  the  surety  of  the  peace  against 
such  person;  and  that  every  justice  of  the  peace  is  bound  to 
grant  it,  upon  the  party's  giving  him  satisfaction  upon  oath,  that 
he  is  actually  under  such  fear,  and  that  he  has  just  cause  to  be 
so,  by  reason  of  the  other's  having  threatened  to  beat  him,  or 
lain  in  wait  for  that  purpose,  and  that  he  does  not  require  it  out  of 
malice  or  for  vexation. 

i  Hawk.  p.          It  seems  also  the  better  opinion,  that  he  who  is  threatened  to 
(..  «.  60.  $.7.   j)e  imprisoned  by  another,  has  a  right  to  demand  the  surety  of 
the  peace,  for  every  unlawful  imprisonment  is  an  assault  and 
wrong  to  the  person  of  a  man  ;  and  the  objection  that  one  wrong- 
fully  imprisoned  may  recover  damages  in  an   action,   &LC.  and 
therefore  needs  not  the  surety  of  the  peace,  is  as  strong  in  the 
case  of  battery  as  of  imprisonment,  and  yet  there  is  no  doubt 
but  that  one  threatened  to  be  beaten  may  domand  the  surety  of 
the  peace. 
4Burm'Just.        But  if  the    justice   shall    perceive   that   surety  is    demanded 

346.eit-s  i         <•          i-  f  4.-  -n        i 

Da'lt.  c.  116.     merely  of  malice,  or  for  vexation  only,  without  any  just  cause  or 
fear,  it  seemeth  he  may  safely  deny  it.     As  in  common    expe- 
rience we  find  it,  that  where  a  person  shall,  upon  a  just  cause, 
come  arjd  crave  the  peace  against  another,   and  hath  it  granted 
f  to  him,  when  such  other  person  shall  come  before  the  justice,  he 

likewise  will  crave  the  peace  against  the  former,  and  will  per- 
haps surmise  some  cause,  but  yet  will  nevertheless  be  content  to 
surcease  his  suit  and  demand,  so  as  the  other  will  relinquish  to 
*  have  the  peace  against  him,  here  the  justice  shall  do  well  not  to 
be  too  forward  in  granting  the  peace  thus  required  by  the  latter, 
but  to  persuade  him,  and  to  show  him  the  danger  of  his  oath 
which  he  is  to  take  ;  but  yet  if  he  will  not  be  persuaded,  but 
will  take  his  oath  that  he  is  in  fear,  where  indeed  he  neither  doth 
fear,  nor  hath  cause  to  fear,  this  oath  shall  discharge  the  justice, 
and  the  fault  shall  remain  on  such  complainant.  Also,  if  a  man 
will  require  the  peace,  because  he  is  at  variance  or  in  suit  with 
his  neighbour,  it  shall  not  be  granted. 

4Bac.  Abr.          If  ene  person  threaten   to   hurt  the  wife  or  child  of  another, 

4  Bums' Just,  surety  of  the  peace  ought  to  be  granted;  but  surety  of  the  peace 
ought  not  to  be  granted,  because  one  person  threatens  to  hurt  the 
servant,  or  cattle,  or  goods  of  another. 

Ibid.  The   surety  of  the  peace  shall  not  be  granted,  but  where  there 

is  a  fear  of  some  present  or  future  danger,  and  not  merely  for  a 
battery  or  trespass  that  is  past,  or  for  any  breach  of  the  peace 
that  is  past ;  for  this  surety  of  the  peace  is  only  for  the  security 
of  such  as  are  in  fear;  but  the  party  wronged  may  bring  his  ac- 
tion, or  punish  the  offender  by  indictment,  and  the  justice,  if  he 
see  cause,  may  bind  over  the  affrayer  to  answer  unto  the  in- 
dictment. 

2.          Surety  of  the  peace  ought  to  be  craved  soon  after  the  cause  of 
the  fear  on  account  of  which  it  is  craved ;  for  the  suffering  of 


SURETY  OF  THE  PEACfE. 

much  tune  to  pass  before  it  is  craved,  show's,  that  the  party  crav- 
ing it  has  not  been  under  great  fear. 

II.  At  whose  request,  and  against  whom  it  »hall  be  granted. 

All  persons  whatsoever,  being  of  sane  memory,  whether  citi-  i  Hawk.'p. 
y.ens  or  aliens,  or  attainted  of  treason,  foe.  have  a  right  to  de-  j.'^.'60'* 
mand  surety  of  the  peace  ;  and  a  wife  may  demand  it  against  her 
husband   threatening   to   beat  her  outrageously  ;  and  a  husband 
also  may  have  it  against  his  wife. 

Surety  of  the  peace  may  be  granted  against  any  person  what-  iHawk.  P» 
soever,   being  of  sane  memory,  whether  lit:  be  a  magistrate   or  c<ClCO-»-5> 
private  person,  and  whether  he  be  of  full  age  or  under  age.    But 
infants  and  feme  coverts  ought  to  find  security  by  their  friends, 
and  not  be  bound  themselves. 

III.  In  ivhat  manner  it  shall  be  granted  and  executed. 

It scemeth certain  that  if  the  person  1o  be  bound  be  in  the  pre-   r  Hawk.  P. 
sence  of  the  justice,  he  may  be  immediately  committed,  unless  c-c<60t*. 
he  offer  sureties  ;  and  from  hence  it  follows,  a  fortiori,  that  he 
may  he  commanded  by  word  of  mouth  to  find  sureties,  and  com- 
mitted for  his  disobedience;  but  it  is  said,  that  if  he  be  absent, 
he  cannot  be  committed  without  a  warrant  from  some  justice  of 
the  peace,  in  order  to  find  sureties,  and  that  such  warrant  ought 
to  be  under  seal,  and  to  show  the  cause  for  which  it  is  granted, 
and  at  whose  S'lit,  and  that  it  may  be  directed  to  any  indifferent 
person. 

The  justice  may  make  his  warrant  to  bring  the  party  before   5Co.59. 
himself  or  some  other  justice,  or  he  may  make  it  to  bring  the 
party    before  himself  only  ;  for  he  that  maketh  the  warrant  for 
the  most  part  hath  the  best  knowledge  of  the  matter,  and  there- 
fore he  is  the  fittest  to  do  justice  in  the  case. 

It  can  be  executed  by  the  persons  only  to  whom  it  is  directed,   i  Hawk.  p.  - 
or  some  of  them,  unless  it  be  directed  to  the  sheriff,  who  may,  c-c<60-'-J 
either  by  parol  or  by  precept  in  writing,  authorize  an  officer  sworn 
and  known  to   serve   it,    but  cannot  empower  any  other  pec  son 
without  a  precept  in  writing. 

If  the  warrant  be  made  in  the  common  form,  directing  the  offi-   i  Hawk.  p. 
cer  to  cause  the  party  complained  of  to  come  before  some  justice     -c-*-»-  "< 
to  find  sufficient  surety,  and  if  he  shall  refuse  so  to  do,  to  convey 
him  immediately  to  prison,  without  expecting  any  further  war- 
rant, until  he  shall  willingly  do  the  same,  the  officer  who  serves  it, 
before  he  makes  any  arrest,  ought  first  to  require  the  party  to  go 
with  him,  and  find  sureties  according  to  the  purport  of  the  war- 
rant, but  upon  his  refusal  to'do  either,  he  may  carry  him  to  jail 
by  force  of  the  same  warrant,  without  more. 

Yet  the  constable  or  officer  may  bring  him  in  th^at  case  before   zHale.P.c. 
<4io  jtlslice-  and  if  he  refuse,  thorn  to  -rive  vrretir?,  he  may,  hy    m-. 


3y4>  SURETY  OF  THE  PEACE. 

virtue  tsS  the  first  warrant,  bring  him  to  jail,  and  commit  h'ur/ 
without  aTiy  further  warrant  or  mittimus. 

-tBuros'Juit.        Nevertheless,  Dr.  Burns  observes,  notwithstanding  these  grea* 

350>  authorities,  it  may  not  be  convenient  for  the  justice  to  leave  so 

much  to  tfee  constable's  judgment,  as  to  determine  whatshall  or 
shall  not  be  deemed  a  refusal  to  find  such  sureties,  for  that  the 
constable  is  appointed  a  judge,  in  such  case,  by  no  law.  And 
much  less  doth  it  seem  adviseable,  to  require  in  the  warrant,  as 
is  usual,  that  the  constable  shall  carry  the  party  to  jail,  if  he  shall 
refuse  to  find  sufficient  sureties;  for  it. doth  not  appear  how  the 
constable  can,  any  way,  be  deemed  a  competent  judge  of  that, 
lor  it  is  certain  that  he  cannot  administer  an  oath  to  such  sureties, 
or  others,  whereby  to.  inform  himself  of  such  sufficiency. 

i  Hawk.  P.  c.  If  the  warrant  specially  direct,  that  the  party  shall  be  brought 
before  the  justice  who  made  it,  the  officer  ought  not  to  carry  him 
before  any  other:  but  if  the  warrant  be  general,  to  bring  him  be- 
fore any  justice  of  the  peace,  the  officer  has  the  election  to  bring 
him  before  what  justice  he  pleases,  and  may  carry  him  to  prison 
for  refusing  to  find  surety  before  such  justice. 

4BurDj'Jus«.  -If  the  officer  do  arrest  the  party,  and  do  not  carry  him  before 
the  justice  to  find  sureties  ;  or  upon  the  refusal  of  the  party,  if 
the  officer  shall  arrest  him  and  do  not  carry  him  to  the  jail,  in  both 
these  cases  the  officer  is  punishable,  by  the  justices,  for  this  ne- 
glect, by  indictment  and  fine,  at  their  sessions :  and,  also,  the  party 
arrested  may  have  his  action  of  false  imprisonment  for  the  arrest; 
for  where  the  officer  doth  not  pursue  the  effect  of  his  warrant, 
his  warrant  will  not  excuse  him  of  that  which  lie  hath  done. 

ibid.  Where  the  party  comes  before  the  justice,  he  must  offer  sure- 

tie-sT  or  else  the  justice  may  commit  him,  for  the  justice  need 
not  demand  surety  of  him.  And  if  the  justice,  having  taken  sure- 
ties, was  deceived  in  their  sufficiency,  he,  or  any  other  justice, 
may  afterwards  compel  the  party  to  find  and  put  in  other  sufficient 
sureties,  and  may  take  a  new  recognisance.  But  if  the  sureties 
die,  the  party  principal  shall  not  be  compelled  to  find  new  sure- 
ties, because  their  executors  and  administrators  are  liable.  Also, 
if  a  person  that  was  bound  to  keep  the  peace  hath  broken  his  bond, 
the  justices  ought,  in  their  discretion,  when  thereof  convicted,  to 
bind  him  anew. 

IV.     Of  the  Recognisance. 

iHawk.r.e.  u  seems  that  the  recognisance  may  be  regulated  by  the  discre- 
tion of  the  justice,  both  as  to  the  number  and  sufficiency  of  the. 
sureties,  and  the  largeness  of  the  sum,  and  the  continuance  of  the 
time  for  which  the  party  shall  be  bound,  and,  it  hath  been  said, 
that  a  recognisance  to  keep  the  peace  as  to  A.  B.  for  a  year,  or 
for  life,- or  without  expressing  any  certain  time,  (in  which  case  it 
shall  be  intended  to  be" for  life,}  or  without  fixing  any  time  or  place 
for  the  party's  appearance,  or  without  binding  him  to  keep  the 
peace  against  all  people  in  general,  is  good. 


SURETY  OF  THE  PEACE.  395 

However,  it  seems  to  be  the  safest  way  to  bind  the  party  to  ap-   j  Hawk.p.r 
pear  at  the  next  sessions  of  the  peace,  and,  in  the  mean  time,  to   «-60-1'  " 
keep  the  peace  as  to  all  people,  especially  as  to  the  party. 

By  the  act  referred  to  at  the  commencement  of  this  title,  in  the 
same  section  of  the  aet,  "  Every  recognisance,  taken  for  the  keep- 
ing of  the  peace  or  good  behaviour,  shall  be  certified,  and  senior 
brought,  by  the  justice  taking  the  same,  to  the  next  court  of  ge- 
neral sessions  of  the  peace  of  the  county  in  which  he  is  a  justice, 
to  the  end  that  the  party  bound  may  be  called,  and  if  he  make  de- 
fault, that  the  same  may  be  recorded,  and  the  recognisance,  wilh 
the  record  of  the  default,  sent  and  certified  into  the  exchequer." 

V.  How  the  recognisance  may  le  forfeited. 

. 

He  who  is  bound  to  keep  the  peace,  and  to  appear  at  the  sessions  «  B«C.  -Ai>r. 
of  the  peace,  must  appear  and  record  his  appearance,  otherwise  *3H'awk  r 
his  recognisance  is  forfeited;  and  although  the  party,  who  craved  c.  v.  •:<>.  s.  i«- 
the  surety  of  the  peace,  come  not  to  pray  that  it  may  be  continued, 
the  justices  may,  at  their  discretion,  order  it  to  be  continued  till 
another  sessions  of  the  peace.     Aird  if  the  party  recognised  have 
any  excuse  for  his  not  appearing,  it  seems  that  the  sessions  is  not 
bound  peremptorily  to  record  his  default,  but  may  equitably  con- 
sider of  the  reasonableness  of  such  excuse. 

A  recognisance  for  keeping  the  peace  is  forfeited  by  the.  doing  iHawk.r.  r. 
of  violence  to  any  person,  whether  it  be  done  by  the  party  bound,  c' 
or  by  any  other  by  his  procurement,  as  manslaughter,  rape,  rob- 
bery, unlawful  imprisonment,  &c.      Also,  it  may  be  forfeited  by 
treason,  and  by  any  unlawful  assembly  in  terrorem  populi,  and 
even  by  words,  directly  tending  to  a  breach  of  the  peace,  as  by 
challenging  one  to  fight,  or,  in  his  presence,  threatening  to  beat 
him. 

However,  it  seems  that  it  shall  not  be  forfeited  by  bare  words   iH»«k.  p. 
of  heat  and  choler,  as  the   calling  a  man  knave,  liar,  rascal  or"  c-c>w)-*-  *2 
drunkard ;  for  though  such  words  may  provoke  a  choleric  man 
to  break  the  peace,  yet  they  do  not  directly  challenge  him  to  it, 
nor  does  it  appear  that  the  speaker  designed  to  carry  his  resent- 
ment any  farther.    And  it  hath  been  said,  that  even  a  recognisance 
for  the  good  behaviour,  shall  not  be  forfeited  for  such  words,  from 
whence  it  follows,  a  fortiori,  that  a  recognisance   of  the  peace 
shall  not. 

A  recognisance  for  keeping  the  peace  is  not  forfeited,  where  an   i  Hawk.  j». 
officer,  having  a  warrant  to  arrest  a  person  who  will  not  suffer  ^ 'H»V°'M,™ 
himself  to  be  arrested,  beats  or  wounds  him  in  an  attempt  to  arrest  ««• 
him.     So,  if  a  parent,  in  a  reasonable  manner,  chastise  his  child  ; 
a  master  his  servant,  or  a  schoolmaster  his  scholar,  neither  of  these 
is  a  forfeiture  of  a  recognisance  for  keeping  the  peace.     And, 
without  enumerating  all  the  asfw-uilts  which  one  person  may  mnkft 
upon  another,  without  forfeiting  a  recognisance  for  keeping  the 
peace,  it  may,  in  the  general,  be  said,  that  the  recognisance,  is  not 


396  *I  KETY  OF  THE  GOOD  BEHAVIOUR 

forfeited  by  any  assault  which  could  have  been  justified  in  an  ac- 
tion, or  upon  an  indictment  fur  the  assault.  • 

i  Hawk.  P.  No  one  shall  forfeit  such  recognisance  by  a  bare  trespass  on  an- 
•  je '27?' *' M>  other's  lands  or  goods,  unless  it  be  accompanied  with  some  vio- 
lence to  the  person.  And  it  seems  to  be  the.  better  opinion,  that  • 
a  man  is  in  no  danger  of  such  a  forfeiture,  from  any  hurt  done  to 
another,  by  playing  at  cudgel?,  or  such  like  sport,  by  consent,  be- 
cause the  intent  of  the  parties  seems  no  ways  unlawful,  but  ra- 
ther commendable,  and  tending,  mutually,  to  promote  activity  and 
courage;  yet,  it  is  s«id  that  he  who  wounds  another  in  fighting 
with  naked  swords,  does,  in  strictness,  for/eit  such  a  recognisance, 
because  no  consent  can  make  so  dangerous  a  diversion  lawful. 
But,  it  seems  that  a  man  shall  not  forfeit  such  recognisance  by  a 
hurt  done  to  another  merely  through  negligence  or  mischance  :  as 
where  one  soldier  hurts  another  by  discharging  a  gun  in  exercise 
without  sufficient  caution  ;  for  notwithstanding  such  person  must, 
,  in  a  civil  action,  give  the  other  satisfaction  for  the  damage  occa- 
sioned by  his  want  of  care,  yet,  he  seems  not  to  have  offended 
against  the  purport  of  such  a  recognisance,  unless  he  be  guilty  of 
some  wilful  breach  of  the  peace. 

c  ^aeoks  *u»  '^ne  sessi°ns  cannot  proceed  against  a  party  for  a  forfeiture  of 
his  recognisance,  but  it  should  be  removed  into  the  supreme 
court,  and  there  be  proceeded  upon  by  scire  facias. 

VI.  How  the  recognisance  may  be  discharged. 

euac.Abr.  If  the  person  who  has  entered  into  a  recognisance  for  keeping 
P^c/cTeo^'  *ke  Peace5  die>  tne  recognisance  may  be  discharged,  if  it  were  not 
ir-  forfeited  before  :  And,  if  the  person  who  has  craved  the  surety 

of  the  peace,  die,  the  recognisance  may  be  discharged,  but  a  re- 
lease from  him  is  not  a  discharge  ;  for  as  the  recognisance  was 
entered  into  to  the  people,  it  is  not  in  the  power  of  the  party  to 
discharge  it. 


SURETY  OF  THE  GOOD  BEHAVIOUR. 

A  man  may  be  compelled  to  find  sureties,  both  for  the  goo.d 
behaviour  and  the  peace,  and  yet  the  good  behaviour  includes  the 
peace,  and  he  that  is  bound  to  the  good  behaviour,  is,  therein  also, 
bound  to  the  peace.  As  the  surety  for  the  good  behaviour  is  of 
near  affinity  to  the  surety  of  the  peace,  it  seems  not  to  require  a 
^.articular  consideration,  except,  only,  as  to  these  two  points  : 

I.  For  u'hat  misbehaviour  it  is  to  be  required. 

II.  For  what  it  shall  be  forfeited. 


SURETY  OF  THE  GOOD  BEHAVIOUR.  397 

I.  For  what  misbehaviour  it  is  to  be  required. 

By  the  act,  sess.  36,  c.  lOt.  s.  I.  referred  to  at  the  commence- 
ment of  the  foregoing  title,  justices  are  authorized  "  to  cause  to 
come  before  them  all  persons  who  shall  threaten  to  break  tin- 
peace,  or  who  be  not  of  good  farr.t,  to  find  sufficient  security  lor 
the  peace,  or  for  their  good  behaviour,  or  both,  as  the  case  may 
require  ;  and  if  they  refuse  to  find  such  security,  to  commit  them 
to  prison  until  they  shall  find  the  same." 

It  is  upon  the  very  broad  construction  of  the  words,  who  be  nol 
f>f  good  fame,  in  our  act,  and  in  the  statute  34-  Edw.  3.  c.  1.  also 
relating  to  the  powers  of  justices  of  the  peace,  that  the  authority, 
to  bind  to  the  good  behaviour,  is  founded. 

In  the  construction  hereof,  there  seem  to  have  been  some  opi-  1,'iawk.  '_• 
nions,  that  the  statute,  speaking  of  those  that  be  not  of  good 
fame,  means  only  such  as  are  defamed,  and  justly  suspected  that 
they  intend  to  break  the  peace,  and  that  it  does  not  any  Avay  ex- 
tend to.those  who  are  guilty  of  other  misbehaviours  not  relating 
to  the  peace  ;  but  this  seems  much  too  narrow  a  construction, 
since  the  above  mentioned  expression  ofpcrsons  of  evil  fame,  in 
common  understanding,  as  properly  includes  persons  of  scanda- 
lous behaviour  in  other  respects,  as  those  who  by  their  quarrel- 
some behaviour  give  just  suspicion  of'their  readiness  to  break  the 
peace  ;  and  accordingly  it  seems  to  have  been  always  the  better 
opinion,  that  a  man  may  be  bound  to  his  good  behaviour  for  many 
causes  of  scandal  which  give  him  a  bad  fame,  as  being  contrary 
to  good  manners  only;  as  for  haunting  bawdy  houses  with  women 
of  bad  fame,  or  for  keeping  bad  women  in  his  own  house,  or  fo;1 
speaking  words  of  contempt  of  an  inferior  magistrate,  as  a  justict- 
of  the  peace,  or  mayor  of  a  town,  though  he  be  not  then  in  tin: 
actual  execution  of  his  office,  or  of  an  inferior  officer  of  justice, 
as  a  constable,  and  such  like,  being  in  the  actual  execution  oi' 
Jiis  office. 

However,  it  seems  the  better  opinion  that  no  one  ought  to  be  i  iinwu.  i . 
bound  to  the  good  behaviour  for  any  rash,  quarrelsome,  or  un-     *c' 
mannerly  words,  unless  they  either  tend  directly  to  a  breach  of 
the  peace,  or  to  scandalize  the  government,    by   abusing  the-- 
who  are  entrusted  by  it  with  the  administration  of  justice,  or  t» 
deter  an  pflicer  from  doing  his  duty  :  and  therefore  it  seems  that 
he  who  barely  calls  another  rogue,  or  rascal,  or  liar,  or  drunkard, 
ought  not  for  such  cause  to  be  bound  to  the  good  behaviour. 

However,  Hawkins  observes,  I  cannot  find  any  certain  precise 
rules  for  the  direction  of  the  magistrate  in  this  respect,  and  there- 
fore am  inclined  to  think  that  he  has  a  discretionary  power*  t'.i 


*  Discretion,  says  Lord  Coke,   (5  Rep.   100,)  is  a  science  or  under- 
standing to  discern  between  falsity  and  truth,  between  wrong  and  rijh(. 


398  SURETY  OF  THE  GOOD  BEHAVIOUR. 

take  such  surety  of  all  those  whom  he  shall  hare  just  cause  to  sus- 
pect to  be  dangerous,  quarrelsome,  or  scandalous,  as  of  those  who 
sleep  in  the  day,  and  go  abroad  in  the  night,  arrd  of  such  as  keep 
suspicious  company,  and  of  such  as  are  generally  suspected  to  be 
robbers,  and  of  eaves  drop pers  and  common  drunkards,  and  of  all 
other  persons  whose  misbehaviour  may  reasonably  be  intended  to 
bring  them  within  the  meaning  of  the  statute,  as  persons  of  evil 
fame,  who  being  described  by  an  expression  of  so  great  latitude, 
seem  in  a  great  measure  to  be  left  to  the  judgment  of  the  magis- 
trate. But  if  he  commit  one  for  want  of  sureties,  he  must  show 
the  cause,  &.c.  with  convenient  certainty. 

Richmond  <r.  In  an  action  of  trespass  and  false  imprisonment,  it  appeared 
icfjohn*.  that  the  plaintiff  was  arrested  by  virtue  of  a  warrant,  dated  the 
Hep.393.  5th  July,  1811,  issued  by  the  defendant,  a  justice  of  the  peace. 
The  warrant  was  as  follows  :  "  Columbia,  to  wit,  to  any  consta- 
ble, &c.  Whereas  Sylvanus  Richmond,  of  the  city  of  Hudson,  &c. 
on  the  5th  July,  at  the  office  of  H.  Dayton,  esq.  at,  kc.  the  said 
justice  being  present,  made  inquiry  of  the  said  justice  of  and 
concerning  a  certain  suit  which  had  been  tried  on  the  forenoon  of 
the  said  day,  in  which  the  =>J  Richmond  was  defendant ;  and  on 
being  informed  by  the  said  Dayton,  the  justice  who  tried  the  said 
eause,  that  a  judgment  was  given  against  him,  the  said  Richmond. 
for  fifty  cents,  did,  in  a  manner  the  most  indecent,  unmannerly, 
and  without  the  least  provocation  given  by  the  said  Dayton,  say, 
that  he  the  said  Da>yton,  in  giving  said  judgment,  had  behaved  and 
had  treated  him  like  a  damned  old  rascal,  together  with  many 
other  words  reflecting  highly  upon  the  said  Dayton  in  his  official 
and  judicial  character;  in  so  doing  he,  the  said  Richmond,  treated 
in  a  most  contemptuous  manner  the  authority  of  the  good  people 
of  the  state  of  New-York,  and  their  dignity.  These  are,  therefore, 
in  the  name  of  the  people,  &c.  to  command  you  forthwith  to  ap- 
prehend him  the  said  Sylvunus  Richmond,  and  to  deliver  him  to 
the  custody  of  the  jailer  in  and  for  the  said  county,  and  the  said 
jailer  is  hereby  commanded  to  receive  him  into  his  said  custody, 
and  him  there  safely  keep  until  he  shall  find  sufficient  security  for 
his  personal  appearance  at  the  next  general  sessions  of  the  peace, 
to  be  holden  in  and  for  the  said  county,  to  answer  the  informa- 
tion and  complaint  aforesaid,  and  also  for  his  good  behaviour  in 
the  mean  time  towards  the  good  people  of  the  said  state,  and  in 
a  special  manner  towards  the  said  H.  Dayton,  the  aforesaid  jus- 
tice. Given,"  fyc.  The  facts  stated  in  the  warrant  are  admitted 
by  the  defendant's  counsel  to  be  true.  The  constable  who  arrest- 
ed the  plaintiff  on  the  warrant,  carried  him  immediately  before  a 
justice  of  the  peace,  who  took  bail  and  discharged  him.  The  de- 
fendant was  not  acting  in  any  manner  as  a  justice  of  the  peace  at 


between  shadows  and  substance,  between  equity  and  colourable  glosses 
and  pretences,  and  not  to  do  according  to  their  wills  and  private  affections. 


SURETY  OF  THE  GOOD  BEHAVIOUR.  399 

the  time  the  words  were  spoken,  and  no  other  or  further  vio- 
lence or  threats  were  used,  and  the  plaintiff  left  the  office  of  the 
defendant  before  the  warrant  was  issued  and  served  upon  him.  A 
verdict  was  found  for  the  plaintiff  subject  to  the  opinion  of  the 
court.  Per  curiam.  The  warrant  was  no  further  executed  than 
by  the  arrest  of  the  plaintiff,  and  taking  him  before  a  magistrate, 
who  let  him  to  bail.  The  object  of  the  warrant  was  only  to  bind 
the  party  to  his  good  behaviour,  and  until  the  next  sessions  ;  and 
this,  under  the  circumstances  of  the  case,  was  a  laudable  and 
commendable  object.  The  direction  in  the  warrant  to  have  the 
plaintiff  io  the  mean  time  committed  to  jail,  not  being  executed, 
may  be  laid  out  of  this  case  as  immaterial.  The  warrant  was  ex- 
ecuted so  far  as  rtspected  the  lawful  object  of  it,  and  no  further. 
The  statute  authorizes  and  makes  it  the  duty  of  the  magistrate 
to  bind  to  their  good  behaviour  all  persons  who  threaten  to  break 
the  peace,  or  who  are  not  of  good  fame.  And  the  decision  of  the 
K.  B.,  after  much  argument  and  discussion  in  the  case  of  Regina 
v.  Langlcy,  (2  Salk.  697.  2  Ld.  Raym.  1029.)  justifies  such  an  act 
as  the  one  done  in  this  case.  It  was  there  held,  that  words  of 
slander  spoken  to  a  magistrate,  in  respect  to  his  official  trust, 
were  to  be  classed  among  petit  offences,  which  are  contra  bono* 
mores,  and  for  which,  when  spoken  to  a  magistrate  in  the  actual 
execution  of  his  office,  he  might  commit,  and  when  spoken  to  him 
out  of  court,  he  might  require  surety  for  the  peace  and  for  good 
fcehavioar,  and  in  default  thereof,  commit.  The  defendant,  in  this 
case,  ought  to  have  immediately  required  of  the  plaintiff  the  sure- 
ty. The  case  does  not  state  whether  he  did  so  or  not.  Perhaps 
the  plaintiff  might  hav«  left  him  before  he  tiad  time  ;  and  as  that 
was  not  made  a  point,  and  as  the  warrant  was  issued  on  the  same 
day  with  the  gross  abuse,  and  the  plaintiff  had  left  the  defendant's 
office,  we  must  presume  that  tha  plaintiff  had  refused  to  give  the 
recognisance,  or  withdrew  before  it  could  be  demanded.  The 
defendant  is  accordingly  entitled  to  judgment. 

A  woman  may  demand  surety  of  the  peace  against  her  husband,  *  vm.3«s. 
if  he  be  guilty  of  ill  usage  to  her. 

If  a  person  have  been  convicted~of  a  misdemeanour,  it  is  usu-  «  Bae.  Abr- 
ally  part  of  the  judgment,  that  he  shall  find  surety  for  his  good  44X 
behaviour  for  some  time. 

II.  For  what  it  shall  be  forfeited. 

It  has  been  laid  down  as  a  general  rule,  that  whatever  will  be  i  Hawk.  p. 
a  good  cause  to  bind  a  man  to  his  good-behaviour,  will  forfeit  a  c-«-e* 
recognisance  for  it,  yet  this  has  been  since  denied;  and  indeed 
does  by  no  means  seem  to  be  maintainable,  because  the  statute, 
in  ordering  persons  of  evil  fame  to  be  bound  in  this  manner,  seems 
in   many  cases  chiefly  to  regard  the  prevention  of  that  mischief 
which   they  may  justly  be  suspected  to  be  likely  to  do;  and  ic 
that  respect  requires  them  to  secure  the  public  from  that  danger 


:£QO  TOWNS. 

which  may  probably  be  apprehended  from  their  future  beha- 
viour, whether  any  actual  crime  can  be  proved  upon  them  or  not; 
and  it  would  be  extremely  hard  in  such  cases  to  make  persons 
forfeit  their  recognisance,  who  yet  may  justly  be  compellable  to 
give  one,  as  those  who  keep  suspicious  company,  or  those  who 
spend  much  money  idly,  without  having  any  visible  means  of  get- 
ting it  honestly,  or  those  who  lie  under  a  general  suspicion  of 
being  rogues. 

•jKawk.  p.  However,  it  seems  that  such  a  recognisance  shall  not  only  be 
forfeited  for  such  actual  breaches  of  the  peace,  for  which  a  rte- 
cognisance  of  the  peace  may  be  forfeited,  but  also  for  some 
others,  for  which  such  a  recognisance  cannot  be  forfeited  ;  as 
for  going  armed  with  great  numbers  to  the  terror  of  the  people, 
or  speaking  words  tending  to  sedition,  and  also  for  all  such  actual 
misbehaviours  which  are  intended  to  be  prevented  by  such  a  re- 
cognisance, but  not  for  barely  giving  cause  of  suspicion  of  what 
perhaps  may  never  actually  happen. 

Abr*  The  recognisance  is  not  in  general  forfeited  by  words  of  heat, 
as  calling  a  person  knave,  rascal,  liar,  or  drunkard  ;  but  if  words 
of  heat  are  spoken  to  a  justice  of  the  peace  in  the  execution  of 
his  office,  this  is  such  misbehaviour  as  amounts  to  a  forfeiture  of 
a  recognisance  for  being  of  good  behaviour,  for  the  public  goo,<l 
requires  that  magistrates  should  be  treated  with  respect. 


TOWNS, 

I.  Town  officers,  when  and  how  lo  be  chosat. 

II.  Town  meetings,  when  and  how  to  be  held. 

III.  Special  town  meetings. 

IV.  Vacancies  in  town  offices,  how  filled. 
V.  Oaths  of  town  officers. 

VI.  Town  officers  ivhen  to  give  security,  and  penalties  for  refusing 

to  serve,  or  neglecting  tu  qualify. 

VII.  Ditties  of  town  clerks. 

VIII.  Regulations  to  be  made  in  town  meetings,  and  penalties  and 

suits  for  the  violation  of  them. 

IX.  Rewards  for  destroying  noxious  animals  and  tveeds. 
X.  Fences  and  fence  viewers. 
XI.  Pounds. 

XII.  Dividing  towns  and  boundaries  of  towns.  ' 

XIII.  Town  charges. 

I.  Town  officers,  when  and  how  to  be  chosen. 

By  .the  act  relative  to  the  duties  and  privileges  of  towns,  sess.  36, 
c.  35,  s.  1.2R.  L.  125,  "the  freeholders  and  inhabitants  of  the  se- 
veral towns  in  this  state,  who  are,  or  shall  be  qualified  by  law  to 


TOWNS. 

vote  at  town-meetings,  shall  assemble  together  and  hold  town- 
meetings  in  their  respective  towns  on  the  first  Tuesday  in  April  in 
every  year,  awl  then  and  there  to  choose  one  supervisor,  o»e 
town-clerk,  not  less  than  three  or  more  than  five  assessors,  one  or 
more  collectors,  each  of  whom  shall  be  liable  only  for  the  inonic 
which  they  are  respectively  directed  to  collect,  in  such  parts  of 
the  town  as  .shall  be  assigned  to  them  by  the  supervisor,  two  over- 
seers of  the  poor,  and  three  commissioners  of  highways  for  the. 
same  town,  each  of  which  town  officers  before  mentioned  shall 
be,  a  freeholder  and  inhabitant  of  the  same  town  ;  and^so  many 
constables,  fence-viewers,  and  pound-masters  for  the  same  town, 
being  inhabitants  of  the  same  town,  as  to  the  freeholders  and  in- 
habitants of  said  town  so  met,  or  the  major  part  of  them,  shall 
seem  necessary  and  convenient;  and  as  many  overseers  of  high- 
ways as  there  are  road  districts  in  each  of  the  towns  respective!}', 
except  in  the  counties  of  Suffolk,  Queens,  Kings  and  Richmond  ; 
and  the  freeholders  and  inhabitants  of  the  several  towns  in  those 
counties  to  choose  as  many  overseers  of  highways  as  they  shall 
deem  necessary  and  convenient;  which  said  several  officers  shall 
hold  their  respective  offices  for  one  year,  and  until  others  shall  be 
chosen  in  their  places  ;  and  the  said  supervisor,  town-clerk,  asses- 
sors, collectors,  overseers  of  the  poor,  commissioner  of  highways 
and  constables,  shall  be  chosen  by  ballot ;  and  in  case  any  of  the 
officers  so  thosen  in  any,such  town  shall  refuse  to  serve,  or  die,  or 
remove  out  of  the  town,  or  become  incapable  of  serving,  before 
the  next  annual  town-meeting,  then,  and  in  every  such  case,  it  shall 
be  lawful  for  the  freeholders  and  inhabitants  of  such  town,  to  sup- 
ply every  such  vacancy,  in  manner  aforesaid,  at  a  special  town- 
meeting  to  be  notified  and  held  for  that  purpose  in  the  manner 
herein  after  directed."  But  no  person  hereafter  to  be  elected  or  ap- 
pointed a  constable  or  collector,  in  any  town  or  ward  in  this  state, 
shall  incur  any  penalty  by  such  refusal  to  serve  as  is  herein  before 
mentioned,  s.  1.  And  see  post,  s.  9. 

II.   Town-meetings  when  and  how  to  Ic  held. 

•% 

By  the  first  section  above  recited,  of  the  act  relative  to  towns, 
town-meetings  are  to  be  held  on  the  first  Tuesday  in  April  in  every 
year.  "  In  such  of  the  towns  in  the  several  counties  of  this  state 
where  the  town-meetings  have,  by  any  laws  in  force  immediately 
before  the  passing  of  this  act,  been  authorized  to  be  held  at  any 
other  day  than  the  first  Tuesday  of  April  in  each  year,  such  town- 
meetings  shall  so  continue  to  be  held,  any  thing  in  this  act  to  the 
contrary  notwithstanding."  s.  32. 

"  For  the  more  orderly  holding  town-meetings,  it  shall  be  and 
is  hereby  made  the  duty  of  the  justices  of  the  peace  for  the  time 
being,  to  attend  at  every  town-meeting  hereafter  to  be  held  in  and 
for  the  town  in  which  they  respectively  reside;  and  the  said 
justice  s  of  the  peace,  or  such  of  them  as  shall  attend  at  such  meet- 

[  M  ] 


402  TOWNS. 

ing,  shall  preside  at,  and  superintend  the  same,  and  take  care  that 
the  business  thereof  be  orderly  and  regularly  conducted ;  and  shall, 
in  case  of  dispute,  determine  who  have,  and  who  have  not  a  right 
to  vote  or  be  elected  at  such  meeting  according  to  law  ;  and  if  no 
justice  of  the  peace  shall  reside  in  the  town  at  the  time  of  holding 
such  meeting,  then  the  clerk  of  the  town  who  was  elected  at  the 
last  preceding  meeting ;  arid  in  case  there  shall  be  no  justice  of 
the  peace  or  town-clerk  attending  at  any  such  town-meeting,  then 
such  person  as  shall  be  chosen  by  the  freeholders  and  inhabitants 
at  such  meeting  to  preside,  shall  preside  at  such  meeting,  and  have 
and  exercise  all  the  powers  and  authorities  hereby  invested  in  the 
justices."  s.  2. 

"Every  male  person,  being  a  citizen  of  this  state,  who  shall  be 
above  the  age  of  twenty-one  years,  and  shall  have"  resided  in  any 
town  six  months  next  preceding  such  town-meeting,  and  paid 
taxes  within  the  same,  or  shall -be  possessed  of  a  freehold,  or 
shall  have  rented  a  tenement  of  the  yearly  value  of  five  dollars, 
for  the  term  of  one  year,  within  the  same,  shall  have  a  right  to 
vote  at  such  meeting,  and  no  other  person."  s.  3. 

"  No  town-meeting  shall  be  held  longer  than  two  days,  and  shall 
only  be  held  open  between  sunrise  and  sunset,  and  shall  be  held 
:at  such  place  in  each  town  as  the  freeholders  and  inhabitants 
thereof  at  their  town-meeting  shall  from  time  to  time  appoint."  s.  4. 

III.  Special  totvn-mtetings. 

"  Whenever  it  shall  be  necessary  to  hold  a  town-meeting  in 
either  of  the  said  towns,  or  wards  in  any  of  the  said  cities,  for 
any  of  the  purposes  required  by  this  act,  at  any  time  between  any 
of  the  said  annual  town-meetings,  due  notice  thereof  shall  be 
given  by  the  town-clerk,  in  writing  under  his  hand,  specifying  the 
time,  place  and  purposes  of  such  town-meeting,  and  fixed  up  at 
four  or  more  of  the  most  public  places  in  the  same^town  or  ward, 
at  least  eight  days  before  the  time  therein  appointed  for  holding 
such  town-meeting,  and  the  town-clerk  of  each  of  the  said  towns 
is  hereby  required  to  give  such  notice  whenever  it  shall  be  ne- 
cessary to  hold  such  town-meeting  for  electing  any  of  the  offi- 
cers aforesaid  in  such  town,  or  when  he  shall  be  required  to  do  so 
by  any^  twelve  or  more  freeholders  of  such  town  or  ward,  and 
when  according  to  law  any  such  election  jn  any  ward  of  any  city 
shall  become  necessary."  s.  16. 

IV.   Vacancies  in  town-offices,  how  filled. 

"  If  any  of  the  said  cities  or  towns  shall  neglect  to  choose  such 
officers  as  aforesaid,  or  any  of  them,  or  in  case  any  of  the  officers 
so  chosen  in  and  for  any  city  or  town  shall  refuse  to  serve,  or  die, 
or  remove  out  of  the  city  or  town  for  which  he  shall  be  chosen, 
or  become  incapable  of  serving  before  the  next  annual  town- 


TOWNS.  403 

meeting  or  election  after  he  shall  be  chosen,  and  the  city  or  town 
for  which  he  was  chosen  shall  not,  within  fifteen  days  next  after 
such  fefusal,  death,  removal,  or  incapacity  happens,  choose  ano- 
ther in  the  room  of  such  person,  according  to  law  ;  in  every  such 
case  it  shall  and  may  be  lawful  for  any  three  of  the  justices  of  the 
peace  in  the  same  county,  residing  in  such  city,  or  in  or  near  to 
such  city  or  town,  and  they  are  hereb)'  required  to  nominate,  and 
by  warrant  under  their  hands  and  seals,  to  appoint  all  and  every 
such  officers  as  aforesaid,  as  the  freeholders  and  inhabitants  of  the 
same  city  or  town  ought  to  have  chosen  as  aforesaid ;  and  each 
of  the  said  officers  so  appointed  shall  hold  his  office  for  so  long 
time,  and  have  the  same  powers,  and  be  liable  to  the  same  penal- 
ties as  if  he  had  been  elected  to  the  same  office  by  the  freehold- 
ers and  inhabitants  of  such  city  or  tewn,  or  according  to  the  acts 
relating  to  the  choice  of  such  officers  in  any  such  city."  s.  5. 

In  an  action  of  trespass,  for  taking  the  plaintiff's  goods,  the  de-    weodr. 
fendant  justified  as  a  constable,  under  an  appointment  of  three   £***% 
justices,  pursuant  to  the  act,  and  that  he  took  the  goods  as  consta-    Rep.  1.9. 
ble,  by  virtue  of  an  execution  issued  against  the  goods  of  the    ^"aw""1*' 
plaintiff:  it  was  held  that  the  appointment  made  by  the  justices    J11- 
was  a  judicial  act;  and  being  within  their  jurisdiction,  was  con- 
clusive and  valid,  until  set  aside,  or  quashed  on  ce.rt iorari ;  and 
could  not  be  questioned  in  a  collateral  action.  , 

V,   Oaths  of  toivn  officers. 

"  Each  supervisor,  town-clerk,  assessor,  commissioner  of  high- 
ways, overseer  of  highways,  overseer  of  the  poor,  constable,  and 
fence-viewer  hereafter  to  be  elected  or  appointed,  shall,  before 
he  enters  upon  the  execution  of  his  office,  and  within  fifteen  days 
after  such  election  or  appointment,  take  and  subscribe  an  oath  be- 
fore some  justice  of  the  peace  in  the  form  hereafter  prescribedjbr 
such  officers  respectively  to  take,  that  is  to  say  :  every  supervisor 
shall  take  and  subscribe  an  oath  in  the  following  form,  to  wit  : 

'I ,  do  solemnly  and  sincerely  promise  and  swear  (or  affirm, 

as  the  case  may  be)  that  I  will  in  all  things,  to  the  best  of  my 
knowledge  and  ability,  faithfully  and  impartially  execute  and  per- 
form the  trust  reposed  in  me  as  supervisor  of  the  (here  insert  the 
name  of  the  place)  In  the  county  of  (here  insert  the  name  of  the 
county)  and  that  I  will  not'pass  any  account  or  any  article  there- 
of, wherewith  I  shall  think'the  said  county  is  not  justly  chargeable, 
nor  will  I  disallow  any  account  or  any  article  thereof  wherewith 
I  shall  think  the  said  county  is  justly  chargeable.'  And  every 
town-clerk  shall  take  and  subscribe  an  oath  in  the  following  form, 
to  wit:  'I  -  — ,  town-clerk  of  the  town  of  — — ,  in  tha  county  of 

•• ,  do  solemnly  and  sincerely  promise  anjl  swear  (or  affirm)  that 

I  will  faithfully  and  honestly  keep  all  the  books,  records,  writings 
and  papers,  by  virtue  of  my  said  office  of  town-clenk,  committed, 
and  which  shall  from  time  to  lime  be  committed  unto  me,  and  in 


404  TOWNS. 

all  things,  to  the  best  of  rny  knowledge  and  understanding,  well 
and  faithfully  perform  the  duties  of  my  said  office  of  town-clerk, 
without  favour  or  partiality.'.  And  every  assessor  shall  take  and 
subscribe  an  r/ath  in  the  following  form,  to  wit:  'I, ,  do  so- 
lemnly and  sincerely  promise  and  swear,  (or  affirm)  that  I  will 
honestly  and  impartially  assess  the  several  persons  and  estates 
v.ithin  Hie  (here  insert  the  name  of  the  place)  in  the  county  of 
(here  insert  the  name  of  the  county)  and  that  in  making  such  as- 
sessments I  will,  to  the  best  of  my  knowledge  and  judgment,  ob- 
serve the  directions  of  the  several  laws  of  this  state,  directing  and 
requiring  such  assessments  to  be  made.'  And  every  commissioner 
of  highways  shall  take  and  subscribe  an  oath  in  the  following 

form,   to  wit :  'I, ,  do  solemnly  and   sincerely  promise  and 

swear,  (or  affirm)  that  I  will  in  all  things,  to  the  best  of  my  know- 
ledge and  understanding,  well  and  .faithfully  execute  the  trust  re- 
posed in  me  as  a  commissioner  of  highways  for  (here  insert  the 
name  of  the  town  and  county)  without  favour  or  partiality.'  And 
every  overseer  of  the  poor  and  constable  shall  take  and  subscribe 

an   oath  in  the  following  form,  to  wit:  'I, ,  do  solemnly  and 

sincerely  promise  and  swear,  (or  aflirm)thatl  will  in  all  things,  to 
the  best  of  my  knoAvledge,  understanding  and  ability,  well  and 
faithfully  execute  and  perform  the  trust  reposed  in  me  as  an  over- 
seer of  the  poor,  (or  constable,  as  tho  case  may  be)  of  the  (here 
insert  the  name  of  the  place,)  in  the  county  of  (here  insert  the 
name  of  the  county).'  And  every  overseer  of  highways,  and 
fence-viewer,  shall  take  and  subscribe  an  oath  in  the  following 

form,  to  wit : — 'I, ,  do  solemnly   and  sine*  rely    promise 

and  swear,  (or  affirm)  that  I  will,  in  all  things,  to  the  best  of  my 
knowledge  and  ability,  well,  faithfully  and  impartially,  execute  and 
perform  the  trust  reposed  in  me  as  an  overseer  of  highways,  (or  a 
fence-viewer,  as  the  case  may  be.)  in  the  town  of  (here  insert  the 
name  of  the  town,)  in  the  county  of  (here  insert  the  name  of 
the  county):'  And  further,  every  justice  of  the  peace  before 
whom  such  oath  shall  be  taken  and  subscribed  as  aforesaid,  shall, 
without  fee  or  reward,  certify  under  the  same  writing,  the  day 
and  year  when  the  same  oath  was  taken,  and  subscribe  his  name 
thereto,  and  then  deliver  the  same  writing  to  the  person  taking 
the  same  oath,  who  shall,  within  eight  days  thereafter,  transmit 
or  deliver  the  same  to  the  clerk  of  the  town  for  which  such  offi- 
cer, so  taking  such  oath,  was  elected  or  appointed."  s.  7. 

VI.  Town  officers,  when  to  give  security,  and  penalties  for  refusing 
to  serve  and  neglecting  to  qualify. 

By  the  latter  clause  of  the  seventh  section,  "  if  any  supervi- 
:  jr,  assessor,  commissioner  ot  highways,  overseer  of  highways, 
overseer  of  the  poor,  constable,  or  fence-viewer,  of  any  town, 
shall  not  take  and  subscribe  such  oath  as  aforesaid,  and  transmit 
or  deliver  the  same  to  the  town-clerks  as  aforesaid,  within  tb,e 


TCHV.XS. 

time  hereby  limited,  or  if  any  collector  or  constable  shall  not 
give  such  security  as  is  by  tow  required  within  the  time  for  that 
purpose  limited,  then,  and  in  every  such  case,  such  neglect  shall 
be  deemed  a  refusal  to  serve  in  such  office,  and  the  city  or  town 
in  which  such  officer  was  chosen  may  thereupon  proceed  to  a  neu 
choice  according  to  law."  s.  7. 

By  sect.  1.  "Every  collector  chosen  or  appointed  in  any  sue!; 
town,  or  in  any  of  the  wards  of  any  city  in  this  state,  shall,  be- 
fore he  enters  upon  the  duties  of  his  ollice,  and  within  eight  days 
after  he  shall  have  received  notice  from  the  supervisor  of  the 
amount  of  the  tax  list,  execute  to  the  supervisor  of,  such  town  or 
ward,  a  bond,  with  one  or  more  sullies,  to  be  approved  of  by  the 
supervisor  of  such  town,  in  double  the  amount  of  the  taxes  to  bo 
collected  by  such  collector,  and  conditioned  for  the  due  and  faith- 
ful execution  of  the  duties  of  his  office  ;  which  bond,  so  taken  and 
approved  of  by  the  supervisor  of  such  town  or  ward,  shall  In- 
lodged  with  the  said  supervisor;  and  in  case  such  bond  shall  be- 
come forfeited,  and  the  amount  of  the  tax  list  cannot  bo  recovered 
from  such  collector,  in  pursuance  of  the  section  of  the  act,  enti- 
tled, 'an  act  for  the  assessment  and  collection  of  taxes,'  it  shall 
then  bo  the  duty  of  the  treasurer  of  the  county  to  give  notice  to 
tln>  supervisor  with  whom  such  bond  is  lodged,  of  the  amount 
due  from  the  said  collector,  and  the  said  supervisor  shall  then 
cause  the  said  bond. to  be  put  in  suit,  and  shall  be  entitled  to  re- 
cover thereon  the  amount  due  from  such  collector,  with  costs  of 
suit ;  which  sum,  when  recovered,  shall  by  such  supervisor  be  ap- 
plied in  the  same  manner  and  to  the  same  purposes  to  which  such 
collectors  ought  to  have  applied  the  same."  s.  1. 

By  the  same  section,  "  every  constable  chosen  or  appointed  its 
every  such  town  or  ward  shall,  before  he  enters  upon  the  duties 
of  his  office,  and  within  ten  days  after  his  election  or  appointment. 
to  be  approved  of  by  the  town-clerk,  or  by  the  supervisor  of  such 
town  or  ward,  execute  under  their  hands  and  seals,  before  such 
supervisor  or  town-clerk,  and  cause,  to  be  filed  in  the  office  of 
the  clerk  of  such  town,  an  instrument  in  writing,  by  which  such 
constable  and  his  sureties  shall  jointly  and  severally  agree,  to  pay 
to  each  and  every  person,  such  sum  of  money  as  the  said  con- 
stable shall  become  liable  to  pay,  for  or  on  account  of  any  exrri' 
tion  which  shall  be  delivered  to  such  constable  for  collection  ; 
and  on  which  instrument  the  said  town-clerk  or  supervisor  oC-trtich 
town  or  ward  shall  endorse  that  he  approves  of  the  sureties  there- 
in named,  and  every  such  constable  and  his  sureties  shall  jointly 
and  severally  be  responsible  to  each  and  every  person  to  whom 
such  constable  shall  become  liable  to  pay  any  sum  of  money  for 
or  on  account  of  any  execution  which  shall  be  delivered  to  such 
constable  for  collection,  in  the  same  manner  as  such  constable 
would  have  been  responsible  had  this  act  not  been  passed;  and  a 
copy  of  such  instrument,  certified  by  the  clerk  of  such  town, 


406  TOWNS. 

shall  be  prima  facie  evidence  in  all  courts  of  the  execution  of  such 
instrument  by  such  constable  and  his  sureties."  s.  1. 

"  If  any  person  hereafter  chosen  or  appointed  a  supervi- 
sor, town-clerk,  assessor,  collector,  commissioner  of  highways, 
overseer  of  the  poor,  or  constable,  as  aforesaid,  shall  refuse  to 
take  upon  him,  or  to  serve  in  such  office,  or  if  any  such  supervi- 
sor, town-clerk,  assessor,  commissioner  of  highways,  or  overseer 
of  the  poor,  shall  proceed  in  the  execution  of  such  office,  before 
he  shall  have  taken  and  subscribed  such  oath  as  aforesaid,  or  if 
any  .;uch  collector  or  constable  shall  proceed  in  the  execution  of 
his  office  bsfore  he  shall  have  given  such  security  as  is  or  shall  be 
required  by  law,  then,  and  in  every  such  case,  every  person  so 
neglecting,  or  refusing,  or  doing,  shall  forfeit  to  the  people  of  this 
state,  the  sum  of  sixty-two  dollars  and  fifty  cents,  to  be  recovered 
by  action  "of  debt,  or  information,  in  any  court  of  record  ;  and  the 
attorney-general  of  this  state  is  hereby  required  to  prosecute  for 
all  such  penalties  and  forfeitures,  and  to  pay  the  same,  when  reco- 
vered, to  the  treasurer  of  this  state,  for  the  use  of  the  people 
thereof:  Provided  always,  That  nothing  in  this  act  contained 
shall  be  construed  to  compel  any  Quaker,  or  reputed  Quaker,  to 
act  as  an  assessor  or  collector,  who  shall  affirm  that  he  hath  con- 
scientious scruples  about  executing  the  duties  of  such  office."  s.  9. 
"  If  any  person  hereafter  chosen  or  appointed  an  overseer  of 
highways^  fence-viewer,  or  pound-master,  shall  neglect  or  refuse 
to  take  upon  him  the  said  office,  or  if  such  overseer  of  highways, 
or  fence-viewer,  shall  proceed  in  the  execution  of  his  office  before 
he  shall  have  taken  and  subscribed  his  oath  as  aforesaid,  then, 
and  in  every  such  case,  such  person  shall  forfeit  and  pay  the  sum 
of  twelve  dollars  and  fifty  cents,  to  be  recovered,  with  costs,  be- 
fore any  justice  of  the  peace  by  action  of  debt,  the  one  moiety 
thereof  to  the  use  of  the  poor  of  the  town  for  which  such  officer 
was  chosen  or  appointed,  and  the  other  moiety  thereof,  with  costs 
of  suit,  to  the  use  of  any  person  who  shall  prosecute  for  the  same 
to  effect."  s.  10. 

Ha  ood  T  In  error  on  certiorari  from  a  justice's  court,  Wheeler  declared 
winter,  in  the  justice Vcourt  in  debt,  for  that  Haywood  had  been  duly  ap- 
Rep?43'£  pointed  one  of  the  overseers  of  highways,  in  and  for  the  town  of 
Grainger,  by  th<i  commissioners  of  highways,  agreeably  to  the  act, 
Sec.  and  that  after  being  so  appointed,  he  neglected  and  refused  to 
serve.;  by  reason  whereof  he  had  incurred  the  penalty  of  twelve 
dollars  and  fifty  cents.  The  defendant  pleaded  not  guilty.  Hay- 
wood,  previously  to  being  appointed  by  the  commissioners,  for  the 
refusing  which  appointment  he  was  now  sued,  had  been  elected 
overseer  of  the.  same  district  at  the  preceding  town-meeting,  and 
having  refused  to  accept  the  office,  had  been  sued  by  one  of  the 
commissioners  for  the  neglect,  and  the  penalty  recovered  against 
him,  and  the  vacancy  to  which  he  was  now  chosen  had  been  oc- 
casioned by  such  refusal. 

SPENCER,  J.  delivered  the  opinion  of  the  court.  By  the  first  sec- 


TOWNS..  407 

tion  of  the  act  relative  to  the  duties  a.nd  privileges  of  towns,  over- 
seers of  highways  are  to  be  annually  chosen ;  and  the  ninth  sec- 
tion of  the  act  imposes  a  fine  of  twelve  dollars  and  fifty  cents  for 
neglecting  or  refusing  to  take  the  ofi.ice.  The  fourteenth  section 
of  the  act  regulating  highways,  (ante,  p.  144-,)  provides,  that  if  any 
vacancy  in  the  office  of  overseer  of  highways  shall  happen,  by 
death  or  otherwise,  the  commissioners  of  the  town  shall  appoint 
"  othej  or  others  in  his  or  their  stead,"  who  are  rendered  liable  to 
the  same  penalties  as  overseers  chosen  are  liable  to.  The  com 
missioners  exceeded  their  powers  in  appointing  the  same  person 
who  had  been  elected,  and  refused  to  qualify  to  the  same  office. 
They  were  confined,  by  the  terms  of  the  act,  to  the  appointment 
of  some  person,  other  than  the  person  refusing.  The  legislature 
considered  the  penalty  as  an  equivalent  for  the  service  ;  and  if 
the  construction  be  tolerated  which  the  court  below  have  adopt- 
ed, the  person  refusing  to  accept  the  office,  for  which  he  might 
have  very  urgent  reasons,  would  be  subjected  to  endless  litigation, 
if  not  ruin.  Whether,  therefore,  there  was  legal  proof  of  the  re- 
covery of  the  former  penalty,  or  not,  Hayicood  stood  excused  to 
be  sued  for  the  penalty,  and  was  not  liable  to  be  appointed  to  the 
office.  Judgment  re  versed. 

VII.  Duties  of  town-clerks. 

"  It  shall  be  and  hereby  is  made  the  duty  of  the  clerks  of  the 
several  towns  in  this  state,  on  or  before  the  second  Tuesday  of 
May  after  every  annual  election  fof  town  officers  in  the  respec- 
tive towns  of  this  state,  to  transmit  to  the  respective  county  clerks 
of  the  county  in  which  the  respective  towns  are  situate,  a  certi- 
fied copy  of  the  names  of  the  constables  chosen  at  such  elec- 
tions; and  if  any  town-clerk  shall  wilfully  omit  to  perform  the  du- 
ty hereby  required  of  him  ;  such  omission  is  hereby  declared  to 
be  a  public  misdemeanour,  and  on  conviction  thereof,  the  court, 
before  whom  such  conviction  shall  be  had,  shall  and  may  adjudge 
the  person  convicted  to  pay  a  fine  not  exceeding  te»  dollars."  s.  8. 

"Upon  the  death  or  the  expiration  of  the  office  of  the  town- 
clerk  of  any  town,  all  the  records,  books,  writings  and  papers,  be- 
longing to  the  same  office,  shall  be  delivered  to  the. successor  in 
office  uporf  the  oath  of  the  preceding  town-clerk,  or  in  case  of  his 
death,  upon  the  oath  of  his  executors  or  administrators;  and  if 
any  such  preceding  town-clerk,  or  his  executors  or  administra- 
tors, shall  refuse  or  neglect  to  deliver  the  same  upon  pith  as 
aforesaid,  being  lawfully  dejnanded,  every  such  person  shall  for- 
feit to  the  people  of  this  state  for  every  such  refusal  or  neglect, 
the  sum  of  two  hundred  and  fifty  dollars,  to  be  recovered  by  ac- 
tion of  debt,  or  by  information,  in  any  court  of  record ;  and  the. 
attorney-general  of  this  state  is  hereby  required  to  sue  for  such 
forfeiture,  and  pay  the  same,  when  recorered,  to  the  treasurer  of 
this  state,  for  the  use  of  the  people  of  this  state."  s.  1 1 . 


TOW.%  .- 

By  sect.  12,  the  town-clerk  is  required  tu  record  tlic  rules  and 
regulations  made  in  town-meetings,  as  to  which  see  the  next  sec- 
tion of  this  title. 

(As  to  the  duty  of  town-clerks  in  relation  to  strays,  vide  STK 

VIII.  Regulations  to  be  made  in  toicn-meeting,   and  penalties  and 
suits  for  the  violation  of  them. 

••  The  freeholders  and  inhabitants  of  each  of  the  said  town?. 
are  hereby  authorized,  at  their  respective  annual  town-meetings, 
oral  any  other  town-meeting  held  for  that  purpose  in  their  re- 
spective towns,  from  time  to  time,  to  make  such  prudential  rules 
and  regulations  as  the  majority  of  the  freeholders  and  inhabitants 
of  such  towns  respectively  so  assembled  at  their  respective  town- 
meetings,  and  having  a  right  to  vote  there,  shall,  from  time  to 
time,  judge  necessary  and  convenient  for  the  better  improving  of 
their  common  lands  in  tillage,  pasturage,  or  any  other  reasonable 
way.  and  for  making,  maintaining,  and  amending  their  partition 
and  circular  fences  for  their  lands,  gardens,  orchards  and  mea- 
dows, and  for  ascertaining  and  directing  the  use  and  management, 
and  the  times  and  manner  of  using  their  common  lands  and  mea- 
dows, and  the  other  commons,  and  the  times,  places,  and  manner 
of  permitting  or  preventing  cattle,  horses,  sheep  and  swine,  or 
any  of  them,  to  go  at  large,  and  for  impounding  all  manner  of 
cattle  and  creatures  whatsoever,  and  for  ascertaining  the  suffici- 
ency of  all  partition  and  other  fences,  and  for  making  and  main- 
taining such  and  so  many  pounds,  and  at  such  places  as  nay  hi- 
necessary  and  convenient,  and  for  ascertaining  and  limiting  the 
fees  to  be  taken  by  the  fence-viewers  respectively,  and  to  impose 
such  penalties  on  the  offenders  against  such  rules  and  regulations, 
or  any  of  them,  as  the  majority  of  such  freeholders  and  inhabit- 
ants so  assembled  shall,  from  time  to  time,  deem  proper,  not  ex- 
ceeding twelve  dollars  and  fifty  cents  for  each  offence,  to  be  re- 
covered, with  costs  of  suit,  by  the  supervisor  of  the  town  where 
the  offence  shall  be  committed,  in  the  name  of  the  supervisor  of 
such  town,  for  the  use  of  the  same  town,  by  action  of  debt,  before 
any  justices  of  the  peace  residing  in  any  other  town  in  the  same 
county ;  and  no  such  action  shall  be  abated  or  discontinued  by 
the  death  or  expiration  of  the  office  of  such  supervisor,  but  may 
be  continued  and  prosecuted  to  effect  by  his  successor  in  office; 
and  all  such  penalties,  when  recovered,  shall  be  applied  for  the 
use  of  the  town  where  such  offence  shall  be  committed,  in  sucb 
manner,  and  for  such  purposes,  as  the  freeholders  and  inhabitants 
of  the  same  town  where  such  offence  shall  be  committed,  at  their 
town-meetings,  or  the  majority  of  them  there  assembled  shall, 
from  time  to  time,  direct  and  appoint :  .inJ  further,  all  such 
rules  and  regulations  so  to  be  made  as  aforesaid  in  each  town, 
shall  be  recorded  by  the  town-clerk  of  the  same  town,  in  a  book 
by  him  to  be  provided  for  that  purpose,  and  shall  remain  in  full 
force  until  the  same  shall  be  revoked  or  altered,  or  new  made  in  the 


TOWNS. 

manner  aforesaid  at  some  subsequent  town-meeting,  all  which  al- 
terations, and  new  rules  and  regulations,  shall  also,  from  time  to 
time,  be  recorded  as  aforesaid,  and  shall  continue  in  force  until 
revoked,  altered,  or  new  ruade  as  aforesaid."  s.  12. 

"  It  shall  be  lawful  for  the  defendant  in  any  action  commenced 
pursuant  to  the  preceding  section  of  this  act,  for  any  injury  com- 
mitted on  the  common  lands  belonging  to  any  of  the  towns  within 
thisstata,  to  justify  on  a  plea  of  title,  and  the  defendant  interpos- 
ing  such  plea  of  justification,  shall  commit  the  same  to  writing, 
and  having  signed  the  same  in  the  presence  of  the  justice  before 
whom  the  action  shall  have  been  brought,  shall  deliver  the  said 
plea  to  such  justice,  who  shall  then  countersign  the  same,  and  de- 
liver it  to  the  plaintiff;  and  thereupon  it  shall  and  may  be  lawful 
for  the  said  plaintiff  to  commence  and  prosecute  such  action 
against  the  said  defendant  in  the  court  of  common  pleas  in  the 
county  in  which  such  common  lands  are  situate  ;  and  if  such 
plaintiff  shall  recover  in  such  action,  the  defendant  shall  be  liable 
to  pay  double  costs  to  the  said  plaintiff,  and  on  the  trial  of  such 
action,  the  plea  signed  by  the  defendant  shall  be  conclusive  evi- 
dence that  he  relied  on  his  title  to  defend  himself  against  such  ac- 
tion, and  evory  justice  to  whom  such  plea  shall  be  tendered, 
shall,  before  he  shall  receive  the  same,  exact  from  the  defendant, 
together  with  one  sufficient  surety,  a  recognisance  in  the  sum  of 
fifty  dollars,  condilioned  that  if  such  plaintiff  shall  commence  a 
suit  before  the  next  court  of  common  pleas,  for  the  recovery  of 
damages  for  such  trespass,  such  defendant  shall  appear  and  put  in 
special  bail  in  such  court  within  twenty  days  after  the  first  day  of 
the  then  next  term  of  the  said  court,  and  in  every  case  iij 
which  such  plea  shall  be  tendered,  and  the  defendant  shall  not 
forthwith  enter  into  such1!  recognisance,  the  justice  shall  proceed 
in  the  same  manner  as  if  such  plea  had  not  been  tendered."  s.  13. 

"  On  every  trial  to  be  had  by  virtue  of  the  preceding  section 
of  this  act,  the  freeholders  and  inhabitants  of  the  town  in  which 
such  common  lands  are  situate,  (except  the  plaintiff  in  such  ac- 
tion,) shall  be,  and  are  hereby  declared  to  be  competent  wit- 
nesses." 8.  14. 

"  It  shall  and  may  be  lawful  for  the  inhabitants  of  any  town  in 
this  state,  for  their  convenience,  and  by  a  vote  of  their  annual 
town-meetipg,  to  direct  the  clerk  of  such  town  to  procure  and 
deposit  in  his  office  a  standard  brass  yard,  to  be  sealed  by  the 
person  authorized  to  seal  and  compare  such  yard,  and  to  be  con- 
sidered as  the  true  yard  for  all  the  purposes  aforesaid."  s.  '29' 

IX.  Rewards  for  destroying  noxious  animals  and  weeds. 

"  It  shall  be  lawful  for  the  freeholders  and  inhabitants  of  eacji 
of  the  said  towns  at  their  respective  annual  town-meetings,  or  at 
any  other  town-meeting  held  for  that  purpose,  to  make  such  pro- 
visions, and  allow  such  rewards  for  the  destruction  of  wolves, 


410  TOWNS. 

bears,  panthers,  wild  cats,  and  foxes,  and  to  direct  such  sum  of 
money  to  be  raised,  in  such  town  for  that  purpose,  and  for  pro- 
secuting and  defending  the  common  rights  of  such  town,  as  the 
major  part  of  the  freeholders  and  inhabitants  so  assembled  at 
any  such  town-meeting  shall  deem  necessary  and  proper ;  which 
money  shall  be  raised  and  levied,  together  with,  and  in  the  same 
manner  as  the  money  raised  in  such  town  for  the  support  of  the 
poor  shall  be  raised  and  levied."  s.  15. 

By  the  act,  sess.  36.  c.  49.  s.  12.  2  R.  L.  14-1.  "It  shall  and 
may  be  lawful  for  the  supervisors  of  each  and  every  of  the  coun- 
ties within  this  state,  or  a  major  part  of  them,  at  their  annual  meet- 
ings, to  declare  whether  any,  and  what  reward  shall  be  given  by 
their  respective  counties  for  the  killing  of  any  wolf  or  wolves, 
panther  or  panthers  therein,  and  the  said  reward  shall  be  a  county 
charge,  and  assessed,  raised  and  levied,  together  with  the  other 
necessary  and  contingent  charges  of  the  county,  and  shall  be  paid 
in  such  manner,  and  under  such  restrictions,  as  the  board  of  su- 
pervisors, allowing  the  reward,  shall  direct:  Provided,  That  no 
reward  so  to  be  allowed  by  any  of  the  said  board  of  supervisors, 
for  the  killing  of  any  wolf  or  panther,  shall  exceed  the  sum  of 
twenty-five  dollars." 

By  the  act,sess.  36.  c.  35.  relative  to  duties  and  privileges  of  towns. 
.  "it  shall  and  may  be  lawful  for  the  freeholders  and  inhabitants 
of  the  several  towns  in  this  state,  at  their  respective  annual  town- 
meetings,  to  make  such  provisions  and  allow  such  rewards  for  the 
destruction  of  the  noxious  weed,  commonly  called  the  Canada 
thistle,  as  the  major  part  of  the  freeholders  and  inhabitants,  so  as- 
sembled at  any  such  town-meeting,  shall  deem  necessary  and 
proper;  and  the  money  so  allowed  for  such  rewards,  shall  be  raised 
and  levied,  together  with,  and  in  the  same  manner  as  the  other 
expenses  of  such  town  shall  be  raised."  s.  24-. 

"  It  shall  be  lawful  for  the  freeholders  and  inhabitants  of  the 
several  towns  in  the  counties  of  Essex,  Franklin,  Seneca,  Co- 
lumbia, Albany,  and  Clinton, -at  their  respective  annual  town- 
meetings,  or  at  any  other  town-meeting  held  for  that  purpose,  to 
make  provision  for  destroying  noxious  weeds  on  the  lands  of  any 
persons  who  shall  be  actually  resident  in  the  said  towns  respec- 
tively, at  the  exclusive  expense  of  such  person."  s.  26. 


X.  Fences  and  Fence-viewers. 

By  the  last  cited  act, "  where  the  lands  or  meadows  of  any  two  or 
more  persons  shall  join  each  other,  each  of  them  shall  make  and 
maintain  a  just  proportion  of  the  division  fence  between  them,  ex- 
cept such  persons  shall  choose  to  let  their  lands  or  meadows  lay 
vacant  and  open;  and  in  case  any  disputes  shall  arise  concerning  the 
part  or  proportion  of  the  fence  to  be  made  and  maintained  by  either 


TOWNS.  41 

party,  the  same  shall  be  settled  by  the  fence-viewers  of  such 
place  where  such  lands  or  meadows  shall  be  situated,  or  any  two 
of  them,  whose  decision  shall  be  conclusive ;  and  if  any  person 
shall  neglect  or  refuse  to  make  and  maintain  his  or  her  part  or 
proportion  of  such  fence,  or  shall  permit  the  same  to  be  out  of 
repair,  every  such  person  shall  be  liable  to,  and  shall  pay,  all 
such  damages  as  shall  accrue  to  his  or  her  neighbours  thereby, 
to  be  appraised  and  ascertained  by  the  fence-viewers  of  the  same 
place,  or  any  two  of  them,  not  interested  therein,  and  to  be  re- 
covered with  costs  in  any  court  having  cognizance  of  the  same ; 
and  in  case  the  party  so  neglecting  or  refusing,  shall  continue  such 
neglect  or  refusal  for  the  space  of  one  month  after  notice  and  re- 
quest to  make  or  repair  such  fence,  then,  and  in  every  such  case, 
it  shall  be  lawful  for  the  party  injured  thereby,  to  make  or  repair 
all  the  said  fence  at  the  expense  of  the  party  so  neglecting  or 
refusing,  to  be  recovered,  with  costs  of  suit,  in  any  court  having 
cognizance  of  the  same  ;  and  in  casij  any  person,  who  shall 
have  made  his  proportion  of  any  such  fence,  shall  conclude  or 
be  disposed  to  throw  up  his  said  lands  or  meadow  for  common 
feeding,  or  to  let  the  same  lay  open,  such  person  shall  give 
three  months  notice  thereof  to  the  person  or  persons  in  posses 
sion  of  the  lands  or  meadows  adjoining,  and  if  sucli  fence  shall 
be  removed,  without  giving  such  notice,  or  before  the  expira- 
tion of  the  said  three  months,  then  the  person  removing  the 
same,  shall  be  liable  to  make  good  all  such  damages  as  the  party 
injured,  by  such  removal,  shall  sustain  thereby,  to  be  recovered  as 
aforesaid,  with  costs."  s.  17. 

On  certiorari  from  a  justice's  court.  Bilrger  brought  an  action  Burger  v. 
of  trespass,  before  a  justice  of  the  peace,  against  Kortright,  for  ^"j""^1' 
damage  done  by  his  cattle  on  the  land  of  Burger,  by  reason  of  Rep-  4U. 
Kortright's  not  having  made  his  share,  or  part  of  the  partition 
fence  between  the  parties,  and  also  for  the  expense  of  making 
the  fence,  which  Kortright,  though  requested,  had  refused  to  - 
make.  The  defendant  pleaded  not  guilty,  and  gave  notice  tliat 
he  should  offer  evidence  of  damages,  sustained  by  cattle,  in  con- 
sequence of  the  plaintiff's  not  having  made  his  proportion  of  the 
division  fence.  Issue  was  joined  thereo-n,  and  the  cause  tried  by 
a  jury,  who  found  a  verdict  for  the  plaintiff.  SPENCER,  J.  deli- 
vered the  opinion  of  the  court.  After  noticing  an  objection  of 
form,  he  proceeds :  The  second  objection  which  relates  to  the 
merits  is,  that  the  jury  have  disregarded  an  agreement  relative  to 
the  partition  fence  between  the  parties,  and  have  founded  their 
verdict  on  the  decision  of  the  fence-viewers.  I  doubt  much  the 
legal  efficacy  of  the  agreement.  It  was  not  made  between  these 
parties.  At  all  events,  disputes  did  exist  between  them,  as  to 
the  proportion  of  fence  maintained  by  each,  and  thus  the  case 
came  within  the  statute.  An  exception  has  been  made  to  the  de- 
*•;.: •  <•«'•«  '•.••>.••  vi '"•••  K"4  •'  •-  "r  ;'f>  avail:  they  never  in- 


412  TOWffS. 

tended,  and  could  not  oblige  the  plaintiff  to  make  a  fence  acrosf" 
the  defendant's  land.  \ 

Wiloughhy  In  error  on  certiorari.  Carleion  brought  an  action  against  WH- 
w  Johns!  Rep.  loughby,  for  work  and  labour,  in  putting  up  a  fr-nce,  being  the  di- 
13R>  vision  fence  between  their  lands,  and  the  proportion  belonging  to 

Willoughby,  which  he  had  neglected  to  mend  for  more  than  a 
ivftmth  after  request.  At  the  trial  the  justice  ruled  that  it  was  not 
accessary  for  Carleton  to  show  that  the  proportions  of  the  fence 
to  each  party  had  been  settled  by  fence-viewers,  because  it  did 
not  appear  that  any  dispute  had  arisen.  He  also  decided  that  it 
was  not  requisite  that  the  costs  and  expenses  of  the  fence  should 
be  settled  by  the  fence-viewers,  and  admitted  parol  proof  of  a 
,  written  request  given  to  the  defendant,  for  a  month,  to  mend  the 

fence,  though  no  notice  had  been  given  to  produce  the  writing. 
Per  curidm.  The  justice  was  correct  in  ruling,  that  a  decision  of 
the  fence-viewers,  as*o  each  party's  proportion  of  the  fence,  was 
not  requisite,  if  no  dispute  existed  as  to  the  proportions  ;  nor  were 
the  costs  and  expenses  of  repairing  the  fence  to  be  settled  in  this 
case  by  the  fence-viewers.  The  admission  of  parol  proof  of  thti 
written  notice  to  the  defendant  to  repair,  was  also  correct. 

"  Whereas,  in  some  parts  of  this  state,  the  fences  inclosing  mea- 
dow and  low  land  are  frequently  injured,  destroyed  or- carried 
away  by  floods  and  high  tides,  which  generally  happen  in  the 
spriifg  of  the  year,  and  the  owners  of  such  meadow  or  low  land 
lose  a  great  part  of  the  profits  thereof  for  the  whole  year  unless 
the  said  fence  be  speedily  repaired  or  new  made:  Therefore,  it  is 
cnacted,That  in  all  cases  where  such  partition  fence  shall  be  so  injur- 
ed, destroyed,  or  carried  away,  every  person  who  ought  by  law 
to  make  or  repair  the  same,  shall  make  or  repair  the  same,  or  his 
just  proportion  thereof,  within  ten  days  after  he  shall  be  thereun- 
to required  by  any  person  interested  therein  ;  and  if  any  person 
shall  refuse  or  neglect  to  make  or  repair  his  proportion  of  such 
fence  for  the  space  of  ten  days  after  such  request  as  aforesaid, 
then'it  shall  be  lawful  for  the  party  injured  thereby  to  make  or 
repair  all  the  said  fence  at  the  expanse  of  the  party  so  neglecting 
or  refusing,  and  to  recover  the  same,  with  costs,  in  any  court 
having  cognizance  thereof."  s.  18. 

"  When  any  distress  shall  be  made  of  any  beasts  doing  damage, 
the  person  distraining  shall,  as  soon  as  conveniently  may  be,  and 
within  twenty-four  hours  thereafter,  unless  the  distress  be  made 
nn  Saturday,  in  which  case  he  shall  before  Tuesday  morning 
thereafter,  make  application  to  the  two  nearest  fence-viewers  in 
the  same  town  to  appraise  and  ascertain  the  damage,  who  shall 
immediately  thereupon  go  to  the  place  where  such  damage  shall 
be  committed,  and  view  the  damage  done,  and  appraise,  ascertain 
and  certify  under  their  hands  the  amount  thereof,  with  their  fees 
for  the  same,  and  if  any  dispute  shall  arise  concerning  the  suf- 
ficiency of  the  fence,  it  shall  be  determined  by  the  same 'fence- 
viewer?,  whose  decision  shall  br  conclusive,  and  Che  person  ma- 


TOWNS.  413 

)cmg  the  distress  shall,  as  soon  as  he  shall  think  proper,  and  with- 
in forty-eight  hours  after  making  such  distress,  unless  the  damage 
shall  be  sooner  paid,  cause  the  beasts  so  distrained  to  be  put  in 
the  nearest  pound  in  the  same  county,  where  they  shall  remain 
until  the  sum  so  certified  by  the  fence-viewers,  with  the  fees  of 
the  pound-master,  shall  be  paid,  or  the  beasts  so  impounded  b<- 
replevied."  s.  19.  See  DISTRESS,  II.  p.  93. 

XI.  Pounds. 

"There  shall  be  made  and  kept  one  or  more  sufficient  pounds 
in  each  city  and  town  of  this  state,  and  it  shall  and  may  be 
lawful  for  the  common  councils  of  the  several  cities  of  New-York, 
Albany,  and  Hudson,  from  time  to  time  to  appoint  keepers  oftho 
pounds  of  their  respective  cities,  who  shall  hold  their  offices  du- 
ring the  pleasure  of  the  said  common  councils  respectively,  and 
the  said  respective  keepers  of  the  said  pounds  and  the  res- 
pective pound-masters  in  each  town  may  take,  for  all  beasts  that 
shall  be  put  into  the  pound  of  which  he  is  keeper  or  master,  the 
following  fees,  to  wit :  for  taking  in  and  discharging  every  horse, 
gelding,  mare,  or  colt,  and  all  neat  cattle,  twelve  and  an  half  cents 
each,  and  for  every  sheep  or  lamb,  three  cents,  and  for  every 
hog,  shoat  or  pig,  six  cents,  which  fees  shall  be  paid  to  the  said 
keeper  or  pound-master  by  the  owner  of  the  said  beasts  impound- 
ed, or  some  person  for  him,  before  the  said  beasts  shall  be  released 
from  such  pound,  unless  the  keeper  or  master  of  such  pound 
shall  otherwise  agree  concerning  the  same ;  and  if  the  owner  of 
any  beasts  impounded  for  doing  damage  shall  not  pay  the  damage 
and  the  fees  of  the  keeper  or  master  of  the  pound,  with  reasona- 
ble charges  for  keeping  and  feeding  them,  not  exceeding  three  „ 
cents  for  each  beast  for  every  twenty-four  hours  such  beast  shall 
be  impounded  and  fed,  within  six  days  after  such  beast  shall  be 
impounded,  or  replevy  the  same  beast?,  then  it  shall  and  may  lu; 
lawful  for  such  keeper  or  master  of  such  pound  to  sell  such  beast 
at  public  vendue,  giving  at  least  forty-eight  hours  previous  notice 
of  such  sale,  by  advertisement  to  be  set  up  at  the  said  pound,  and 
at  the  nearest  public  place  to  the  said  pound,  and  out  .of  the  mo- 
nies arising  from  such  sale  to  pay  the  said  damages,  and  retain 
in  his  hands  his  fees  and  charges  of  feeding  and' keeping  the  same 
beast  and  of  such  sale,  and  return  the  overplus  to  the  owner  of 
•  he  same  beast,  and  if  no  such  owner  shall  appear  and  claim  such 
overplus  within  six  calendar  months  after  such  sale,  the  panv 
shall  be  paid  to  the  overseers  of  the  poor  of  the  city  or  tow». 
where  such  beast  was  impounded,  for  the  use  of  the  poor  of  such 
city  or  town."  s.  21. 

XII.  Dividing  towns  and  boundaries  of  towns. 
•'No  town  in  this  state  sli-ill  be  divided,  nor  any  hew  town 


TOWNS. 

erected,  without  an  application  to  the  legislature  by  the  inhabi- 
tant* of  such  town  so  to  be  divided,  or  of  the  several  towns  out  of 
which  such  new  town  is  to  be  erected,  or  some  of  them,  accom- 
panied with  a  map  of  such  town  or  towns,  with  the  lines  of  sucii 
proposed  division,  or  new  town,  marked  thereon  ;  and  notice 
of  such  intended  application  shall  be  given  at  least  ten  days  pre- 
vious to  the  town-meeting  in  each  of  the  towns  to  be  affected 
thereby,  which  notice  shall  be  in  writing,  and  affixed  on  the  door 
of  the  house  where  such  town-Meeting  shall  be  held,  and  shall  be 
subscribed  by  at  least  five  persons,  resident  and  freeholders  in 
such  towns,  a  copy  of  which  notice  shall  also  be  read  in  such 
town-meeting,  to  the  people  there  assembled,  by  the  clerk  of  such 
town,  immediately  before  proceeding  to  the  election  of  town 
officers."  s.  25. 

"Where  any  counties  or  towns  in  this  «tate  are  separated  from 
each  other  by  a  river  or  creek,  in  every  such  case  the  middle  of 
the  channel  of  the  river  or  creek  shall  be,  and  hereby  is  declared 
to  be  the  division  line  between  them."  s.  30. 

"In  every  case  in  which  the  bounds  of  a  town  already  erected, 
or  that  may  hereafter  be  erected,  shall  appear  to  be  so  described 
in  the  act  erecting  or  altering  the  same,  that  they  cannot  be  deli- 
neated by  the  surveyor-general  on  the  map  of  this  state,  without,  a 
survey  specially  made  for  that  purpose,  it  shall  be  the  duty  of 
the  supervisor  of  such  town,  on  the  application  of  the  surveyor- 
general,  to  obtain,  or  cause  such  survey  to  be  made,  and  transmit 
the  same  to  the  surveyor-general's  office,  the  costs  and  charges  of 
which  shall  be  defrayed  by  such  town  in  the  manner  in  which 
other  contingent  charges  of  towns  are  defrayed  and  paid."  s.  31. 

By  the  act  to  divide  this  state  into  counties,  sess.  36.  c.  30.  s. 
3.  2  R.  L.  119,  "Whenever  any  boundary  line  between  two  towns 
runs,  or  may  run.  across  any  island,  the  whole  of  such  island  shall 
be  deemed  to  be  within  the  town  in  which  the  greater  part  of  it 
lies,  unless  otherwise  particularly  declared." 

XIII.   Town  charges, 

By  the  act,  sess.  30.  c.  49.  2  R.  L.  137,  "The  compensation 
for  the  services  of  the  assessors,  inspectors  of  election,  and  com- 
missioners of  highways,  shall  be  considered  as  town  expenses,  and 
it  shall  be  lawful  for  the  supervisors  of  the  several  counties  in  this 
btate  to  audit  the  accounts  of  such  town  officers  ;  and  the  said  su- 
jicn  i<ors  shall  ascertain  the  amount  of  each  town's  proportion  of 
the  county  cosfs,  according  to  the  value  of  the  real  and  personal 
•'stales  therein,  and  as  valued  by  the  assessors  in  each  town  in  the 
same  year,  and  to  such  sum  add  such  other  sum  as  shall  be  found 
by  the  said  supervisors  necessary  to  defray  such  town  expenses, 
;md  such  further  sum  as  any  such  town  shall  have  voted  to  be 
mised  for  the  destruction  of  noxious  animals,  birds,  and  weeds,  in 
the  snm*"  rear,  with  the  sum  to  be  raised  in  each  to\rn  for  the 


TREASON. 

maintenance  of  the  poor  thereof,  and  shall  cause 'all  such  sums  to  • 
be  raised  and  levied,  together  with  the  taxes  to  he  raised  and  le- 
vied for  the  use  of  this  state,  hy  adding  to  the  tax  of  each  person 
liable  to  pay  the  same,  as  the  other  contingent  charges  of  the 
towns  and  counties  are  levied  and  collected,  and  shall,  in  their 
warrants  to  the  collectors  of  each  respective  town,  direct  such 
collector  to  pay  the  sum  so  raised  and  collected,  for  town  ex- 
penses, into  the  hands  of  the  supervisor  of  the  town  for  the  pay- 
ment of  the  said  town  expenses,  who  shall  for  such  money  ac- 
count with  the  justices  of  the  peace  and  town  clerk,  on  or  before 
the  last  Monday  of  September  thereafter  in  eacli  year,  and  out  of 
the  first  money  which  shall  be  collected,  such  collector  shall  pay 
to  the  overseers  of  the  poor  such  money  as  shall  be  so  raised,  for 
the  maintenance  of  the  poor  of  such  town,  and  the  residue  of  the 
money  so  collected  by  him,  to  be  paid  to  the  treasurer  of  th»« 
county,  on  or  before  the  first  day  of  February  then  next."  s.  2. 

"If  any  collector  in  any  city,  town,  or  ward,  shall  not  pay  to 
the  supervisor  and  overseers  of  the  poor  thereof,  the  monies  di- 
rected to  be  paid  to  them  by  such  warrant,  within  the  time  there- 
in mentioned,  and  produce  to  the  county  treasurer  receipts  for 
the  same,  from  one  or  more  of  the  said  overseers  and  supervisor, 
or  satisfactory  evidence  of  such  payment,  within  one  week  after 
the  expiration  of  the  time  mentioned  in  such  warrant,  the  same 
shall  be  deemed  to  be  unpaid,  and  it  shall  be  the  duty  of  such 
treasurer  to  collect  the  same,  together  with  the  other  monies,  if 
any,  which  may  be  due  from  such  collector  for  taxes,  and  to  pro- 
ceed in  the  same  manner  for  the  recovery  thereof  as  is  directed 
in  such  cases  by  the  act,  entitled  'an  act  for  the  assessment  and 
collection  of  taxes,'  and  out  of  the  first  monies  received  by  him 
on  such  proceedings,  to  pay  the  same  to  the  said  supervisor  and 
everseers."  s.  3.' 


TREASON. 

The  offence  of  treason  is,  in  this  country,  restricted  to  tw». 
beads  :  1.  The  levying  war  against ;. and,  2.  The  adhering  to  the 
enemies  of  the  country. 

By  the  third  section  of  the  third  article  of  the  constitution  of 
the  United  States,  "  Treason  against  the  United  States  shall  con^ 
sist  only  in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort." 

By  an  act  of  the  legislature  of  this  state,  sess.  24.  c.  29.  s.  1. 
1  R.  L.  14-5.it  is  declared,  "that  if  any  person  do  levy  war 
against  the  people  of  this  state,  or  be  adherent  to  the  enemies  of 
the  people  of  this  state,  giving  to  them  aid  and  comfort  in  this 
state,  or  elsewhere,  and  be  thereof  attainted  of  open  deed,  such 


416 


The  People, 
v.  Lynch, 
11  Johns. 
Hep.  549. 


TV  ARRANT. 

offences,  and  no  other,  shall  be  adjudged  treason  against  the 
people  of  this  state." 

Although  treason  may  be  committed  against  the  state  of  New- 
York,  as  by  opposing  the  la*,vs  of  the  state,  or  forcibly  attempting 
to  overturn  or  usurp  the  government,  yet  the  offence  of  adhering 
to,  and  giving  aid  and  comfort  to  the  public  enemies  of  the  United 
States,  is  not  treason  against  this  state. 

By  the  second  section  of  the  above  mentioned  act,  it  rs  de- 
clared, "  That  concealment,  or  keeping  secret  any  treason,  shall 
be  from  henceforth  adjudged,  deemed,  and  taken  to  be  misprision 
of  treason." 

As  Jhe  consideration  of  the  laws  of  the  United  States  forms  no 
part  of  the  subject  of  this  digest,  and  as  it  appears  from  the  de- 
cision stated  above,  that  treason  against  the  state  can  be  of  but  rare 
occurrence,  it  is  thought  unnecessary  to  enlarge  up«n  this  head 


WARRANT. 


2  Hale,  P.  C. 
86. 


If.  a  justice  see  a  felony,  or  other  breach  of  the  pea#e  commit- 
ted in  his  presence,  he  may  in  his  own  person  apprehend  the  fe- 
lon ;  and  so  he  may,  by  word,  command  any  person  to  apprehend 
him,  and  such  command  is  a  good  warrant  without  writing.;  but 
if  the  felony  or  other  breach  of  the  peace  be  done  in  his  absence, 
then  he  must  issue  his  warrant  in  writing,  under  his  seal,  to  appre- 
hend the  malefactor. 

I.  For  ii'hat  causes,  and  on  ivhat  information  or  suspicion,  a  war- 
rant may  be  granted. 
It.  The  form  of  it. 
III.  Indorsement  of  a  warrant  in  another  county. 

I.  For  what  causes,  and  on  what  information  or  suspicion,  a  warrant 
may  be  granted. 


i.  Hawk.  P. 
C.  c.  13.  s,  15. 


There  seems  to  be  no  doubt  but  that  a  warrant  may  lawfully  be 
granted,  by  any  justice  of  the  peace,  for  treason,  felony,  or  any 
other  offence  against  the  peace  :  also,  it  seems  clear,  that  when- ' 
ever  a  statute  gives  to  any  one  justice  of  the  peace,  a  jurisdic- 
tion over  any  offence,  or  a  power  to  require  any  person  to  de  a 
certain  thing  ordained  by  such  statute,  it  impliedly  gives  a  power 
to  every  such  justice  to  make  out  a  warrant  to  bring  before  him 
any  person  accused  of  such  offence,  or  compellable  to  do  the. 
thing  ordained  by  such  statute  ;  for  it  cannot  but  be  intended, 
that  a  statute  giving  a  person  jurisdiction  over  an  offence,  doth 
mean  also  to  give  him  the  power  incident  to  all  courts,  of  com- 
pelling the  party  to  come  before  him.  And  it  would  be  to  little 
purpose  to  authorize  a  man  to  require  another  to  do  a  thing,  if  it 


WARRANT.  417 

were  to  be  understood  that  the  person  authorized  had  no  power 
to  compel  the  party  to  come  before  him. 

But  it  seems,  that  anciently  no  one  justice  of  the  peace  could  2Hawk.  P.,  . 
legally  make  out  a  warrant  for  an  offence  against  a  penal  statute  or 
other  misdemeanour,  cognizable  only  by  a  sessions  of  two  or  more 
justices  ;  for  that  one  single  justice  of  the  peace  hath  no  jnrisdic- 
tion  of  such  offence,  and  regularly  those  only  who  have  a  juris- 
diction over|  a  cause,  can  award  process  concerning  it:  yet, 
the  long,  constant,  universal,  and  uncontrolled  practice  of  justices 
of  the  peace,  seems  to  have  altered  the  law  in  this  particular, 
and  to  have  given  them  an  authority  in  relation  to  such  arrests, 
not  now  to  be  disputed. 

The  party  who  demands  the  warrant  ought  to  be  first  examined  g6^urm'^ust 
on  oath,  touching  the  whole   matter  whereupon  the   warrant  is   i  Hale,  p. 
demanded,  and  such  examination  be  put  i»  writing  ;  and  also  he   £  H»U?,  P. 
should  be  bound  by  recognisance  to  prosecute  at  the  next  sessions  c-  lll» 
or  oyer  and  terminer,  as  the  case  shall  require. 

A  justice  hath  power  to  issue  a  warrant  to  apprehend  a  person   e^o^io?' 
suspected  of  felony,  before  h.e  is  indicted;  and  that  though  the   no.  2Ha*k. 
original  suspicion  be  not  in  himself,  but  in  the  party  that  prays  *"i|)*'!' 
his  warrant ;  for  the  justices  are  judges  of  the  reasonableness  of 
the  suspicion,  and  when  they  have  examined  the  party  accusing, 
touching  the  reasons  of  his  suspicion,  if  they  find  the  causes  of 
suspicion  to  be  reasonable,  it  is  now  become  the  justice's  suspi- 
cion as  well  as  theirs. 

"  No  justice  of  the  peace  shall  be  obliged  to  issue  any  warrant, 
on  any  complaint  for  a  trespass,  or  an  assault  and  battery,  or 
either  of  them,  unless  the  person  making  such  complaint,  and  re- 
quiring such  warrant,  and  every  person  .recognised  as  principal 
before  any  such  justice  for  said  offences,  shall  pay  the  fees  to  the 
justice  for  taking  such  recognisance."  sess.  36.  c.  104.  ?.  7.  1  R. 
I*.  508. 

II.  The  form  of  it. 

It  is  safe,  but   perhaps  not  necessary  in  the  body  of  the  war-   a  Hawk.^ 
rant,  to  show  the  place  where  it  was  made  ;  yet  it  seems  neces- 
sary to  set  forth  the  county  in  the   margin,  at  least  if  it  be  not 
set  forth  in  the  body. 

It  may  be  directed  to  the  sheriff,  constable,  or  to  any  indiffe-  £/Ja*3k's>*V. 
rent  person,  by  name,  who  is  no  officer  ;  for  a  justice  may  autho- 
rize any  one  to  be  his  officer  whom  he  pleases  to  make  such,  y-.-t 
it  is  most  adviseable  to  direct  it  to  the  constable  of  the  precinct 
wherein  it  is  to  be  executed,  for  no  other  constable,  and  a  forti- 
ori, no  private  person  is  compellable  to  serve  it. 

But  it  is  said,  that  if  a  statute  direct  that  a  justice  shall  grant  *L<J.  R»ttn 
a  warrant,  and  doth   not  say  to  whom  it  shall  be  directed,  by 
of  law,  it  must  be  directed  T«  the  ronstnKl*.   and  it 


418 


4Burm<Juit. 

665. 

2  Hawk.  P. 
C-  C.  13.  s.  27. 
2  H«le,  P.  C. 

111. 


2  Ihle,  P.  C. 
114. 


2  Hale,  P.  C. 
112. 


2Hawk.P.C. 
e.  13.s.  22. 
4  Burns' Just. 

605,  668. 


Bull.  N.  P. 
S3. 


WARRANT. 

cannot  be  directed  to  the  sheriff,  unless  such  power  is  given  in 
the  act. 

Regularly  the  warrant,  especially  if  it  be  for  the  pe*ace  or 
good  behaviour,  or  the  like,  where  sureties  are  to  be  found  or  re- 
quired, ought  to  contain  the  special  cause  and  matter  w  hereupon  it 
is  granted,  to  the  intent  that  the  party  upon  whom  it  is  to  be 
served  may  provide  his  sureties  ready,  and  take  them  with  him 
to  the  justice  to  be  bound  for  him  ;  but  if  the  warrant  be  for 
treason,  murder,  or  felony,  or  for  great  conspiracies,  rebellious 
assemblies,  or  other  offences  of  an  enormous  nature,  it  hath  been 
said  that  it  need  not  to  contain  any  special  cause,  but  the  warrant 
of  the  justice  may  be  to  bring  the  party  before  him,  to  make  an- 
swer to  such  things  or  matters,  generally,  as  shall  be  objected 
against  him. 

The  warrant  ought  to  mention  the  name  of  the  party  to  be  ar- 
rested, and  must  not  be  left  in  general,  or  with  blanks,  to  be  filled 
up  by  the  party  afterwards. 

A  justice  may  make  a  wan-ant  as  well  in  the  case  of 'felony,  as 
of  the  peace,  to  bring  the  party  before  himself,  and  then  the  of- 
ficer ought  to  bring  the  party  before  him  that  made  the  warrant, 
or  he  may  make  the  warrant  to  bring  him  before  any  justice  of 
the  peace,  and  then  it  is  in  the  election  of  the  officer  to  bring 
him  before  which  justice  of  the  county  he  pleases,  and  it  is  not 
in  the  election  of  the  party  to  go  before  whom  he  pleases. 

It  ought  to  set  forth  the  year  and  day  wherein  it  is  made,  that 
in  an  action  brought  upon  an  arrest  made  by  virtue  of  it,  it  may 
appear  to  have  been  prior  to  such  arrest :  and  also  in  case  where 
the  statute  directeth  the  prosecution  to  be  within  such  a  time, 
that  it  may  appear  that  the  prosecution  is  commenced  within 
such  time  limited  :  likewise,  where  a  penalty  is  given  to  the  poor 
of  the  town  where  the  offence  shall  be  committed,  or  the  like,  it 
ought  to  specify  the  place  where  the  offence  was  committed. 

A  warrant  under  the  hand  of  the  justice  is  sufficient,  without 
being  under  seal,  unless  particularly  required  by  statute  to  be 
under  seal. 


vide  ante,  p. 


III.  Indorsement  of  a  warrant  in  another  county. 

By  the  act  fur  the  better  apprehending  of  felons  and  other  offend- 
ers, sess.  24%  c.  3 1 .  s.  2.  1  R.  L.  1  4-9,  "  In  case  any  person  against 
whom  any  warrant  shall  be  issued  by  any  justice  of  the  peace  lor 
any  offence,  shall  escape,  or  be  in  any  other  county  out  of  the 
jurisdiction  of  the  justice  granting  the  warrant,  it  shall  be  the  du- 
ty of  any  justice  of  the  peace  of  the  county  where  such  person 
shall  be,  upon  proof  of  the  hand  writing  of  the  justice  granting  the 
warrant,  to  indorse  his  name  on  the  same,  which  shall  be  a  suffi- 
cient authority  to  the  person  bringing, the  warrant,  and  to  all 
other  persons  to  whom  it  was  directed,  to  arrest  the  offender  in 
the  county  where  the  warrant  was  indorsed,  and  to  bring  him  bet 


WOODS.  419 

lore  any  justice  of  such  county ;  and  in  case  the  offi-nce  be  baila- 
ble, and  the  offender  be  willing  and  ready  to  give  bail  to  appear 
and  answer  at  the  next  court  having  cognizance  of  the  offence,  in 
the  county  where  it  was  committed,  the  justice  before  nhom  he 
is  brought  shall  tak«  bail  accordingly,  and  deliver  the  recogni- 
sance, examination  of  the  prisoner,  and  all  the  proceedings  be- 
fore him  had,  to  the  officer  or  other  person  having  charge,  of  the 
prisoner,  who  shall  take  and  deliver  the  same  to  the  clerk  of  the 
court  in  which  such  offender  is  bound  to  appear  \  and  such  recog- 
nisance and  examination,  or  confession,  shall  be  equally  valid  as 
if  taken  in  the  county  where  the  offence  was  committed;  and  any 
officer  or  other  person  refusing  or  neglecting  to  deliver  over  the 
same  to  the  clerk  as  aforesaid,  shall  forfeit  twenty-five  dollars,  to 
be  recovered  against  him  by  action  of  debt  or  information  by  any 
person  who  will  sue  therefor :  And  if  such  offence  be  not  baila- 
ble, or  the  offender  shall  not  give  bail  to  the  satisfaction  of  the 
justice  before  whom  he  shall  be  so  brought,  then  the  officer,  or 
other  person  having  charge  of  the  prisoner,  shall  convey  him  to 
a  justice  of  the  peace  of  the  county  where  the  offence  was  com- 
mitted, there  to  be  dealt  with  according  to  law.     *9nd  further, 
no    action    shall    be  brought    against  any  justice   who  shall  in- 
dorse a  warrant  as  aforesaid,  for  indorsing  the  same;  but  such  ac- 
tion may  be  brought  against  the  justice  who  originally  granted 
the  warrant,  in  the  same  manner  as  if  the  offender  had  been  ar- 
rested in  the  county  where  the  warrant  was  granted."  s.  2. 
The  form  of  the  indorsement  may  be  as  follows : 
West  Chester,  to  wit :  Forasmuch  as  proof  upon  oath  hath  been 
made  before  me,  J.  P.  Esquire,  one  of  the  justices  of  the  peace  for 
the  said  county  of  West  Chester,  that  the  name  A.  B.  is  of  the  hand 
writing  of  the  justice  of  the  peace  ivithin  mentioned :  I  do  hereby 
authorize  A.  C.  who  bringeth  to  me  this  ivarrant,  and  all  other  per- 
sons to  whom  the  said  ivarrant  is  directed,  to  execute  the  same  within 

the  said  county  of  West  Chester.    Given  under  my  hand,  the  

day  of ,  in  the  year . 

And  the  justice  may  further  order  (if  he  thinks  fit)  the  party,   4Bi.rn»-Jui'. 
according  as  he  shall  appear  bailable,  or  not  bailable,   upon  the 
face  of  the  warrant,  to  be  brought  before  himself,  or  some  otln-r 
justice  or  justices  of  that  county,  or  to  be  carried  back  into  the 
county  from  whence  the  warrant  did  issue. 
As  to  the  arrest  on  a  warrant,  vide  ARRF.ST. 
As  to  what  is  to  be  done  by  the  justice  on  the  party's  !>• 
brought  before  him,  -vide  BAIL,  COMMITMENT,  EXAMINATION. 


WOODS. 

IJy  the  act  to  prevent  firing  the  woods,  srss.  II.  r.  '21.   1  K-  I- 
123.    "  If  any  person  or  persons  shall  set  lire  to  the  woods  i"  any 


WOODS. 

part  of  this  state,  he,  she,  or  they  shall  forfeit  and  pay  the  sum  of 
ten  pounds,  to  be  recovered  with  costs  of  suit,  in  any  court  hav- 
ing cognizance  thereof,  by  any  person  or  persons  who  will  sue 
and  prosecute  lor  the  same  ;  the  one  moiety  of  which  forfeiture, 
when  recovered,  shall  be  paid  to  the  overseers  of  the  poor  of  the 
town  or  place  where  the  offence  shall  have  been  committed,  for 
the  use, of  the  poor  thereof;  and  the  other  moiety  to  the  person 
or  persons  who  will  sue  and  prosecute  for  the  same  to  effect  as 
aforesaid.  And  such  offender  or  offenders  shall  moreover  be 
liable  to  all  such  damages  as  any  person  or  persons  shall  sustain 
by  such  firing  the  woods  as  aforesaid."  s.  1. 

"  Provided  always,  That  nothing  in  this  act  contained  shall  be 
construed  to  hinder  or  prevent  any  person  or  persons  from  firing 
his,  her,  or  their  own  woods;  but  if  he,  she,  or  they  do  suffer 
such  fire  to  extend  beyond  his,  her,  or  their  own  woods,  he,  she, 
or  they,  shall  be  subject  to  the  penalty  and  forfeiture  aforesaid, 
besides  being  answerable  for  the  damages."  s.  2. 

"  When  the  woods  in  any  town  within  this  state  shall  be  on 
fire,  the  justices  of  the  peace,  the  supervisor,  the  commissioners 
of  the  highways,  and  the  officers  of  the  militia,  (not  under  the 
rank  of  captain)  residing  in  such  town,  shall,  and  they  are  here- 
by  severally  authorized  and  required  to  order  such  and  so  many 
of  the  inhabitants  of  such  town  liable  to  work  on  the  highways, 
and  who  shall  reside  within  the  vicinity  of  the  place  where  such 
lire  shall  be,  as  they  shall  severally  deem  necessary,  to  repair  to 
the  place  where  such  fire  shall  prevail,  and  there  to  assist  in  ex- 
tinguishing or  stopping  the  progress  of  the  same;  and  if  any  per- 
son so  ordered  to  repair  to,  and  assist  in  manner  aforesaid,  shall 
refuse  or  neglect  to  comply  with  such  order,  every  person  so  dis- 
obeying such  order,  shall  forfeit  and  pay  the  sum  of  four  shil- 
lings for  every  day  he  shall  so  neglect  or  refuse,  to  obey,  to  be 
recovered  in  a  summary  way,  with  costs,  before  any  justice  of 
the  peace  resident  in  such  town,  and  the  oath  of  the  person  bar- 
ing given  such  order  shall  be  sufficient  evidence  whereon  to  con- 
vict any  delinquent,  and  the  forfeiture  so  recovered  shall  be  ap- 
plied as  a  reward  to  such  person  or  persons  as  the  officers  afore- 
said, or  the  major  part  of  them,  shall  deem  best  entitled  ther«to, 
for  superior  exertions  at  the  extinguishment,  or  in  stopping  th.e 
progress  of  such  fire."  s.  3. 

By  the  act/or  the  amendment  of  the  laic,  sess.  36.  c.  56.  1  R.  L. 
525,  "  any  person  who  shall  wilfully  commit  trespass,  by  cutting 
down  or  destroying  any  kind  of  wood,  or  timber,  standing,  or 
growing,  upon  the  lands  of  the  people  of  this  state,  or  of  any  per- 
son or  persons  whatsoever,  or  shall  wilfully  commit  trespass,  by 
carrying  away  ar.y  kind  of  wood  or  timber  which  may  be  lying 
upon  such  lands,  or  shall  wilfully  and  maliciously  cut  down,  lop, 
girdle,  bark,  or  injure  any  orchard,  or  fruit  tree,  or  trees,  without 
the  consent  of  the  owner  or  owners  of  tire  land  whereon  such  or- 
chard, fruit  tree,  or  trees,  was.  or  were  standing  or  grojring,  ?ha"H 


WRECK. 

be  deemed  guilty  of  a  misdemeanor,  and  being  convicted  there- 
of by  due  course  of  law,  shall  be  punished  by  fine  or  imprison- 
ment, at  the  discretion  of  the  court  before  which  such  conviction 
shall  be  had :  Provided  always.  That  no  person  ao  convicted  by 
virtue  of  this  act,  shall  be  imprisoned  for  a  longer  term  of  time 
than  one  year,  or  fined  in  a  sum  exceeding  fifty  dollars."  s.  28. 

"  If  any  person  or  persons  shall  cut  any  wood,  wnderwood,  trees, 
•r  timber,  or  shall  girdle,  or  otherwise  despoil  any  fruit  trees  on 
land,  the  title  whereof  is  in  the  people  of  this  state,  such  person 
or  persons,  not  being  actual  settlers  on  such  land,  or  on  the  com- 
•mons  of  any  city  or  town,  he  or  they  having  no  right  or  privilege 
in  such  commons,  and  not  having  obtained  license  from  the  cor- 
poration, or  trustees,  of  such  city  or  town,  or  on  any  other  land, 
without  the  leave  or  permission  of  the  owner  or  Owners  thereof, 
or  shall  in  like  manner  carry  off  any  wood,  underwood,  trees,  or 
timber,  from  the  same,  such  person  or  persons  shall  pay  to  the 
owner  or  owners  of  such  land,  treble  the  value  of  the  wood,  un.- 
derwood,  trees,  or  timber,  cut  or  carried  off,  as  aforesaid,  to  be 
recovered  with  costs,  in  an  action  of  trespass,  before  any  court 
having  cognizance  \of  the  same,  by  the  owner  or  owners  of  the 
land  on  which  such  trespass  shall  have  been  committed,  or  if  such 
trespass  shall  be  committed  on  the  commons  of  any  city  or  town, 
then  by  the  .corporation  of  the  city,  or  by  the  trustees  of  the 
town  to  which  such  commons  shall  belong;  but  if  such  land  shall 
belpng  to  the  people  of  this  state,  then  by  the  overseers  of  tho 
poor  of  the  town  in  which  such  trespass  or  trespasses  shall  be 
committed,  for  the  use  of  the  poor  thereof:  Provided  always, 
That  if  upon  the  trial  of  any  action  of  trespass,  for  cutting  down, 
destroying,  or  carrying  away,  any  trees,  timber,  or  underwood,  it 
shall  appear  by  evidence,  that  the  trespass  was  casual  and  in 
voluntary,  or  that  the  defendant  had  probable  cause  to  believe, 
that  the  land  on  which  the  trees,  timber,  or  underwood,  so  cut, 
destroyed,  and  carried  away,  were  his  own  ;  in  such  case  the  court, 
having  cognizance  of  the  cause,  shall  give  judgment  for  the  plain- 
tiff, to  recover  single  damages  only,  and  costs  of  suit :  Provided 
also,  That  nothing  herein  contained  shall  authorize  any  person  to 
recover  more  than  the  just  value  of  any  timber  taken  for  the  mak- 
ing or  repairing  any  public  roads  or  bridges,  with  coats."  s.  29. 


WRECK. 

Wreck  of  the  sea,  in  legal  understanding,  is  applied  to  such  2  loit.  v>t. 
goods  as,   after  shipwreck  at  sea,  are  by  the  sea  cast  upon  the 
land. 

None  of  those  goods  which  are  called  jetsam,  (from  being  i  Black, 
cast  into  the  sea  while  the  ship  is  in  danger,  and  which  there  sink  J°B™'r^2' 
j'id  remain  underwater,)  or  thosf;  called  flotsam,  (from  floating  jJ"»f--'<««. 


422  WRECK. 

on  the  surface-  of  the  water,)  or  those  called  Jigan,  (whichJie  irr 
the  bottom  of  the  sea,  but  tied  to  a  cork  or  buoy  in  order  to  be 
found  again.)  arc  to  be  esteemed  wreck,  so  long  as  they  remain 
i:i  or  upon  the  sea,  and  are  not  cast  upon  the  land  by  the  sea  ;  but 
if  any  of  them  are  cast  upon  the  land  by  the  sea,  they  ace  wreck. 
"If  a  ship,  vessel,  or  boat,  or  any  kind  of  goods,  wares  or  mer- 
chandise, shall  be  cast  by  the  sea  on  the  land,  neither  such  ship, 
•vrs .--..'I  or  boat,  nor  any  thin?;  in  them,  nor  such  goods,  wares  or 
merchandise,  shall  be  adjudged  wreck  ;  but  the  ship,  vessel  or 
boat,  and  every  thing  therein  contained,  and  such  goods,  warts 
and  merchandise,  shall  be  saved  and  kept  by  the  view  of  the 
sheriff  or  coroner,  or  other  person  appointed  for  that  purpose, 
who  shall  cause  the  same  to  be  appraised,  and  safely  keep  them, 
so  that  if  any  person,  Avithin  a  year  and  a  day,  sue  for  those 
goods,  and  prove  that  they  were  his,  or  lost  in  his  keeping,  they 
shall  be  restored  to  him  without  delay,  upon  his  paying  the 
charges  and  expenses  of  saving  and  keeping  the  said  goods  ;  but 
if  not,  they  shall  remain  to  the  people  of  this  state,  and  shall, 
after  the  expiration  of  the  said  year  and  day,  be  sold  at  public 
vendue,  by  the  sheriff,  coroner,  or  other  persoYi  appointed  for  that 
purpose,  who  shall  have  found  or  seized  the  same,  who  shall  ac- 
count for  the  same  at  the  exchequer,  deducting  the  charges  and 
expenses  of  saving  and  keeping  the  same,  and  of  such  sale  :  And 
he  that  doth  otherwise,  and  is  thereof  convicted,  shall  yield  da- 
mages to*  the  party  grieved,  and  shall  be  punished  by  fine  or  .im- 
prisonment, or  both,  at  the  discretion  of  the  court  or  justices  be- 
fore whom  he  shall  lie  convicted. 

"  Jind  further,  If  any  merchant,  citieen,  or  stranger,  or  any 
other,  be  robbed  (if  his  goods  upon  the  sea,  and  the  goods  come 
into  any  part  of  this  state,  and  he  will  sue  to  recover  the  said 
goods,  he  shall  be  received,  to  prove  the  said  goods  to  be  his  own, 
by  his  marks  or  by  his  cocket,  or  by  good  and  lawful  merchants, 
eitizens,  or  strangers,  or  others;  and  upon  such  proof,  the  same 
goods  shall  be  delivered  to  him  without  delay."  sess.  10.  c.  28.  s. 
].  1  R.  L.  68. 

"  It  shall  and  may  be  lawful  for  the  person  administering  the 
government  of  this  state  for  the  time  being,  by  and  with  the  ad- 
vice and  consent  of  the  council  of  appointment,  from  time  to  time, 
by  commission  under  the  great  seal  of  this  state,  to  appoint  such 
and  so  many  proper  persons  in  each  of  the  counties  of  this  state, 
bordering  on  the  sea,  as  they  may  think  necessary,  to  aid  and  as- 
sist all  such  ships  and  vessels  as  may  happen  to  be  stranded  on  the 
coasts  in  the  same  counties;  and  such  persons  so  appointed  shall 
be,  and  hereby  are  respectively  authorized  and  required  to  give  all 
possible  aid  and  assistance  to  all  such  ships  and  vessels,  anti  to 
the  people  on  board  of  the  same,  and  to  use  their  utmost  endea- 
vours to  save  the  same,  and  to  save,  preserve  and  secure,  for  the 
purposes  aforesaid,  the  cargoes  of  all  such  ships  and  vessels,  and 
all  goods  and  chattels  whatsoever  which  may  at  any  time  be 


WRECK.  423 

cast  by  the  sea  upon  the  land  ;  and  to  employ  such  ami  so  nini.y 
rhen  for  the  purpose,  as  th<:y  may  respectively  think  proper.  And 
the  sheriff,  coroner,  or  other  person  so  appointed  as  aforesaid,  and 
all  persons  by  them  employed,  sh;i!l  have  a  reasonable  allow- 
ance out  of  the  same  goods  so  saved  and  preserved,  for  saving, 
preserving,  and  keeping  the  same.  And  such  sheriff,  coroner,  or 
other  person,  so  appointed  as  aforesaid,  shall  and  may  detain  tin- 
same  goods  until  payment  thereof ;  and  in  case  any  dispute  shall 
arise  concerning  such  allowance,  the  same  shall  be  settled  and 
adjusted  by  any  two  or  more  justices  of  the  peace,  dwelling  in  or 
near  the  town  or  place  where  the  said  goods  shall  be  found  or 
saved.  And  if  any  person  shall  take  away  any  goods  whatsoever, 
out  of  any  ship  or  vessel  stranded  as  aforesaid,  or  any  goods  cast 
by  the  sea  upon  the  land,  or  found  in  any  bay  or  creek,  and  not 
deliver  the  sume  goods  to  the.  sheriff  or  coroner  of  the.  county 
where  the  same  shall  be  found,  or  to  one  of  the  persons  appoint- 
ed as  aforesaid,  within  forty-eight  hours  after  taking  the  panic,  or 
shall  secret  any  such  goods,  or  convert  them  to  his  own  use;  every 
person  so  offending,  shall,  yield  double  damages  to  the  owner  of 
such  goods,  to  be  recovered,  with  costs  of  suit,  in  any  court  hav- 
ing cognizance  thereof,  and  be  further  punished  by  fine  or  impri- 
sonment, or  other  corporal  punishment,  at  the  discretion  of  the 
court,  not  extending  to  life  or  limb.  And  it  is  hereby  made  the 
duty  of  every  sheriff,  coroner,  justice  of  the  peace,  and  constable, 
and  the  persons  so  appointed  as  aforesaid,  to  present  all  tiffenrcs 
and  offenders  ji^i-s!  !>.is  act,  ;-t  the  sessions  of  the  peace,  in  their 
respective  c'oui.ties  ;  and  the  justices  of  the  peace,  in  their  ses- 
sion;;, are  herKby  authorized  and  required  to  hear  and  determine 
the  same."  s.  'A. 


THE  KM) 


APPENDIX : 

CONSISTING    OF  A   SELECTION  OP  THE 

MOST  USEFUL  AND  NECESSARY  PRECEDENTS 

RELATING    TO    THE    DUTIES    OP    A 

JUSTICE    OF   THE    PEACE. 

11 "~  JH( '  * 

APPRENTICES. 

r/identure  by  the  overseers  ofttlie  poor. 

THIS  Indenture,  made  the day  of< ,  in  the  year  of  our 

Lord ,  between  A.  B.  and  C.  D.,  overseers  of  the  poor  of  the 

town  of ,  in  the  county  of ,  of 'the  one  part,  and  A.  M., 

of  the  said  town,  shoemaker,  of  the  other  part,  witnesseth,  that 

the  said  overseers  of  the  poor,  by  and  with  the  consent  of , 

two  of  the  justices  of  the  peace  for  the  said  county,  residing  in 

[or  near}  the  said  town  of ,  have  put,  placed,  and  bound,  and 

by  these  presents  do  put,  place,  and  bind  A.  P.,  who  is  chargeable 
to  the  said  town,  [or  whose  parents,  B.  P.  and  C.  P.,  are  chargeable 

to  the  said  toion,  or  who  begs  for  alms,}  of  the  hge  of ,  to  be  an 

apprentice  [or  servant]  with  him,  the  said  A.  M.,  and  as  an  appren- 
tice [or  servant]  with  him,  the  said  A.  M.,  to  dwell,  from  the  date 
of  these  presents  until  the  said  A.  P.  shall  come  to  the  age  of 
twenty-one  [or,  if  a  female,  of  eighteen]  years,  according  to  the 
act  in  such  case  made  and  provided.  By  and  during  all  which 
time  and  term,  the  said  A.  P.  shall  the  said  A.  M.,  his  said  mas- 
ter, well  and  faithfully  serve,  in  all  such  lawful  business  as  the 
said  A.  P.  shall  be  put  unto  by  the  command  of  his  said  master, 
according  to  the  power,  art,  and  ability  of  him,  the  said  A.  P., 
and  honestly  and  obediently  in  all  things  shall  behave  himself  to- 
wards his  said  master,  and  honestly  and  orderly  towards  the  rest 
of  the  family  of  the  said  A.  M.  And  the  said  A.  M.,  for  his  part, 
for  himself,  his  executors  and  administrators,  doth  hereby  pro- 
mise and  covenant  to,  and  with  the  said  overseers  of  the  poor  and 
each  of  them,  their,  and  each  of  their  executors  and  administra- 
tors, and  their,  and  each  of  their  successors  for  the  time  being, 
and  to  and  with  the  said  A.  P.,  that  he,  the  said  A.  M.,  shall  (the 
said  A.  P.  in  the  craft,  mystery  and  occupation  of  a  »hoemaker, 
which  he,  the  said  A.  M.  now  useth,  after  the  best  manner 

[  51  ] 


APPENIUX. 

he  can  or  may,  teach,  instruct  or  inform,  or  cause  to  be  taught, 
instructed  and  informed,  as  much  as  thereunto  belongeth,  or  in 
any  wise  appertained ;  and  that  the  said  A.  M.  shall  also*)  find 
and  allow  the  said  A.  P.  sufficient  meat,  drink,  apparel,  washing^ 
lodging,  and  all  other  things  needful  or  meet  for  an  apprentice  [or 
servant]  during  the  term  aforesaid ;  and  also  that  the  said  A.  M. 
shall  cause  the  said  A.  P.  to  be  taught  and  instructed  to  read  and 
write,  and  shall  also  give  unto  the  said  A.  P.  a  new  bible  at  the 
expiration  of  his  [or  her]  said  term  of  service.  In  witness  where- 
of, the  parties  to  these  presents  have  hereto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  7 
in  the  presence  of  j 

Such  other  covenants  as  the  parties  can  agree  upon  may  be 
added. 


The  assent  of  two  justices. 

We, ,  two  of  the  justices  of  the  peace  for  the  abovemeu- 

tioned  county  of ,  residing  in  [or  near]  the  said  towi*  of r 

do  hereby  declare  our  assent  to  the  binding  of  the  above  named 
A.  P.,  an  apprentice  to  the  above  named  A.  M.,  according  to  the 
form  and  effect  of  the  above  written  indenture.  Given  under  our 
hands  the day  of . 


Summons  of  the  master  for  misusing  his  apprentiee. 

West  Chester,  to  wit : 

To  any  constable  of  the  town  of ,  in  the  said  county. 

Whereas  complaint  and  information  hath  been  made  unto  me, 
one  of  the  justices  of  the  peace  in  and  for  the  said  county,  by  A. 

P.,  apprentice  to  A.  M.,  of  ,  in  the  said  county,  shoemaker, 

that  the  said  A.  M.  hath  misused  and  evil  entreated  him,  the  said 
A.  P.,  by  cruel  punishment,  and  beating  him,  the  said  A.  P.,  with- 
out just  cause,  and  by  not  allowing  unto  him  sufficient  meat,  drink, 
apparel,  [or  as  the  case  may  fce.j  These  are  therefore,  in  the 
name  of  the  people  of  the  state  of  New- York,  to  command  you 
to  summon  the  said  A.  M.  to  appear  before  me  at  the  house  of 

,  in  the  said  county,  on ,  the  day  of ,  at  the 

hour  of  ,  in  the  afternoon  of  the  same  day,  to  answer  unto 

the  said  complaint ;  and  to  be  further  dealt  with  according  to 
law.  Herein'  fail  you  not.  .Given  under  my  hand  and  seal,  the 
day  of,  &tc. 

*  When  the  rhild  is  bound  as  a  sercan/,  the  clause  between  brackets 
onght  to  be  omitted. 


APPENDIX. 


Summons  of  the  apprentice,  on  complaint  of  the 

Chester,  se.  To,  «,-c. 
Whereas  complaint  and  information  hath  been  made  unto  mfi, 
--  ,  one  of  the  justices  of  the  peace  in  and  for  the  said  county, 
by  A.  M.,  of  --  ,  in  the  said  county,  shoemaker,  that  A.  P.,  now 
being  an  appreRtice  to  him,  the  said  A.  M.,  is  negligent,  stubborn, 
disorderly,  [or  as  the  case  shall  be,]  and  doth  not  his  duty  to  the 
said  A.  M.,  his  master  :  These  are  therefore  to  command  you  to 
summon  the  said  A.  P.  to  appear  before  me,  &c.  at,  fee.  to  an- 
swer to  the  said  complaint,  and  to  be  further  dealt  with  according 
to  law.  Here  in'  fail  not.  Given,  fcc. 


Recognisance  of  the  master  to  appear  at  the  setsicns. 

Be  it  remembered,  that  OH,  kc.  A.  M.  of ,  in  the  county  of 

— — ,  shoemaker,  personally  came  before  me, ,  one  of  the 

justices  of  the  peace  in  and  for  the  said  county,  and  acknowledged 
himself  to  owe  to  the  people  of  the  state  of  New-York dol- 
lars, to  be  made  and  levied  of  his  goods  and  chattels,  lands  and 
tenements,  to  the  use  of  the  said  people,  if  default  shall  be  made 
in  the  condition  following : 

Whereas  complaint  and  information  hath  been  made  unto  me, 
the  said  justice,  by  A.  P.,  the  apprentie*  of  the  said  A.  M.,  that 
the  said  A.  M.  hath  misused  and  evil  entreated  him,  [as  in  the 
summons,]  and  the  said  A.  M,  and  A.  P.,  now  appearing  before 
me  in  the  matter  aforesaid,  and  I  not  being  able  to  compound  or 
agree  the  matter  between  them.  The  condition  of  this  recogni- 
sance is  such,  that  if  the  said  A.  M.  do  and  shall  appear  at  the  next, 
general  sessions  of  the  peace,  to  be  held  in  and  for  the  said  coun- 
ty, to  answer  to  the  complaint  aforesaid,  and  not  depart  without 
leave  of  the  court ;  then  this  recognisance  to  be  void,  otherwise 
-to  continue  in  full  force  and  effect. 


Order  of  discharge  fit  the  sessions. 

West  Chester,  ss. 

At  a  general  sessions  of  the  peace,  holden  at ,  in  and  fo; 

the  county  aforesaid,  the day  of ,  in  the  year ,  br- 

.fore ?  justices  assigned  to  keop  the  peace  in  the  said  county, 

and  also  to  hear  and  determine  divers   felonies,  trespasses,  and 
other  misdemeanors  in  the  said  county  committed,  it  is  ordered 
as  followeth : 
.  Upon  the  petition  of  A.  P.,  apprentice  to  A.  M,,  of ,  in  th* 


428  APPENDIX. 

said- county,  shoemaker,  to  be  relieved  upon  certain  neglects  of 
the  said  master,  in  instructing  him  in  his  trade,  and  in  misusing 
and  evil-entreating  the  said  apprentice,  by  cruel  punishment,  [or 
as  the  case  may  fee,]  and  the  said  master  having  likewise  appeared 
upon  his  recognisance,  taken  before  J.  P.,  esquire,  one  of  the  said 
justices,  to  answer  to  the  complaint  of  the  said  petition,  and  hav- 
ing proved  nothing  whereby  to  clear  himself  of  the  said  com- 
plaint; but,  on  the  contrary,  the  said  A.  P.  having  given  full  proof 
of  the  truth  of  the  said  complaint,  to  the  satisfaction  of  the  said 
court,  it  is  therefore  ordered  by  the  said  court,  that  the  said  ap- 
prentice shall  be,  and  hereby  is  discharged  from  his  said  appren- 
ticeship, (and  that  the  said  A.  M.  refund  to ,  his  executors,  or 

administrators,  the  sum  of  dollars,  being  part  of  the  sum  of 

,  paid  by  the  said to  the  said  A.  M.,  with,  or  in  relation  to 

the  said  apprentice.)  And  this  to  be  a  final  order  between  the 
said  master  and  apprentice ;  any  thing  contained  in  their  inden- 
tures of  apprenticeship,  or  otherwise,  to  the  contrary  notwith- 
standing. 


Complaint  of  an  apprentice  to  three  justices  against  his  master  under 
sect.  10.  of  the  ad. 

West  Chester,  ss. 

The  information  and  complaint  of  A.  P.,  apprentice,  to  A.M., 

of  : ,  in  the  said   county,    shoemaker,   exhibited   before  us, 

three  of  the  justices  of  the  peace  in   and  for  the  said  county, 

the day  of ,  in  the  year . 

Who  saith,  that  he,  the  said  A.  P.,  is  an  apprentice,  bound  by 

indenture  to  A.  M.,  ef  aforesaid,  shoemaker;  and  that  he, 

the  said  A.  M.  hath  misused  and  ill-treated  him,  the  said  appren- 
tice, and  particularly,  [as  the  case  shall  be.] 

A.  P. 

Before  us, 

A.  B. 

C.  D. 

E.  F. 


Summons  of  the  master  on  the  above  complaint. 

West  Chester,  ss.      To,  Sfc. 

Whereas  information  and  complaint  hath   been  made,  unto  us, 

,  three  of  the  justices  of  the   peace    in   and  for  the  said 

county,  by  A.  P.,   apprentice  to  A.  M.,  of  • ,  in  the    said 

county,  shoemaker,  that  he,  the  said  A.  M.,  hath  misused  and 
ill-treated  him,  the  said  A.  P.,  and  particularly  [as  the  case  shall 
Is:  These  are,  therefore,  to  require  you  to  summon  the  said 


APPENDIX. 

A.  M.  to  appear  before  us,  at ,  in  the  said  county,  on the 

day   of   ,   to  answer  unto  the  said  information  ami 

complaint.  And  be  you  then  there,  to  certify  what  yon  shall 
have  done  in  the  execution  hereof.  Herein  fail  you  nol.  (Jiv.'.i 
-tinder  our  hands  and  .seals,  the  —  day  of ,  in  t'ne  year 


Discharge  of  the.  apprentice,  by  the  justices. 

Whereas   complaint    hath    been    made    before   us,    throe    o;' 
the   justices    of  the    peace  in    and  for    the   said   count}',   hy  A. 

P.,   apprentice  to  A.  M,   of — ,  in   the  said  county,  tailor, 

that  he,  the  said  A.  M.,  hath  misused  and  evil  treated  him,  th<- 
said  apprentice,  and  particularly  [as  the  case  shall  be :]  And 
whereas  the  said  A.  M.  hath  appeared  before  us,  in  pursunoro  of 
our  summons  for  that  purpose,  but  hath  not  cleared  himself  of 
and  from  the  said  accusation  and  complaint,  but  on  Hie  contrary 
the  said  A.  P.  hath  made  full  proof  of  the  I  ruin  thereof  before. 
ns,  upon  oath  ;  we  therefore,  by  these  presents,  do  discharge 
him,  the  said  A.  P.  of  and  from  his  apprenticeship  to  the  said 
A.  M.,  any  thing;  in  the  indenture  of  apprenticeship  made  he 
twixt  them,  or  otherwise,  howsoever,  to  the  contrary  notwith- 
standing. Given  under  our  hands  and  seals,  the day  of,  8cc. 

(Or,  And  whereas  it  hath  been  duly  proved  before,  us,  as  well  upon 

the  oath  of  A.  C.,  constable  of aforesaid    as  otherwise,  thai 

he,  the  said  .4.  C.,  did  duly  summon  {he  said  A.  .17.  to  inipair  In  - 
Jore  us  at  a  reasonable  time,  in  the  said  summons  mentioned  and 
spfdjied ;  but  notwithstanding  the  same,  he,  the  said  .?.."»/..  hni:< 
not  appeared  before  us,  according  to  such  summons:  //"/>,  there- 
fore, having  duly  examined  into  the  matter  of  the  Haid  complaint, 
and  th"  truth  thereof  having  been  fully  proved  before  NS,  upon  <•«//(, 
do  discharge,  Sfc.) 


Complaint  of  the  master  to  two  or  more  justices  agains!  ///.- 
tice,  under  sect.  I  ] . 

_  ,  v_ oe 

•    The  complaint,    and    information  of   A.  M  ,    of 

the    said    county,    tailor,    taken  and  made    on   oath    l>:'fi>n;  us 

,  two  of  the,  justices   of  the  peace   in  and    for   tho  said 

county,  the day  of ;  who  saith,  that  A.  P..  .-ipprcutirr 

by  indenture    to   him,  the    said     A.    M.,    hath,     in    the   S»M-\  !«•«• 
v<*    his  apprenticeship,    been    sniUy    <«f  several    mis<!<:m« 


AJPPENDKt: 

miscarriages,  and  ill  behaviour  towards  him,  the  said  A.  M.,  and 
particularly,  [as  the  tast  shall  be.] 

A.  M. 
Before  us, 
J.  P. 
K.  P. 


Warrant  to  bring  the  apprentice  before  the  justices. 

,  ss.     To,  Sfc. 

Whereas  oath   hath   been   made   before   us,  ,  two  of  the 

justices  of  the    peace  in  and  for  the  said  county,  by  A.  M.,  of 

,  jn  the  said  county,  tailor,  that  A.  P.,  apprentice  to  the  said 

A.  M.,  hath  committed  divers  misdemeanors  against  the  said 
A.  M.,  his  master,  and  particularly  [a*  the  case  may  be.]  These 
arc.  therefore,  to  require  you  forthwith  to  apprehend  the  said 
A.  P.,  and  bring  him  before  us,  to  answer  unto  the  said  com- 
plaint, and  to  be  dealt  with  according  to  law  ;  and  you  are  to 
give  notice  to  the  said  A.  M..  that  he  appear  before  us  at  the  same 
time,  to  make  good  the  said  complaint.  Given  under  our  hands 
and  seals,  Sec. 


Commitment  of  an  apprentice  on  the  complaint  of  his  master. 

-,  ss.     To,  Sfc. 

Whereas  complaint  hath  been  made  before  us,  two  of  the  jus- 
tices of  the  peace  in  and  for  the  said  county,  upon  the  oath  of 
A.  M.,  of  ,  in  the  said  county,  tailor,  that  A.  P.,  appren- 
tice, hath  committed  divers  misdemeanors  against  him,  the 
said  A.  M.,  his  master,  and  particularly  [as  the  case  shall  be,]  And 
whereas,  upon  examination  thereof,  and  upon  hearing  the  alle- 
gations of  both  parties,  having  come  before  us  for  that  purpose, 
and  upon  due  consideration  had  thereof,  it  manifestly  appears  to 
as  that  the  said  A.  P.  is  guilty  of  the  premises  so  charged  against 
him  as  aforesaid  :  We  do,  therefore,  hereby  command  you,  the 
«aid  constable,  to  take  and  convey  the  said  A.  P.  to  the  said 
house  of  correction,  (er,  to  the  common  jail  of  the  said  county,) 
and  to  deliver  him  to  the  keeper  thereof,  together  with  his  war- 
rant :  And  we  do  hereby  command  you,  the  said  keeper  of  tin* 

-said ,  to  receive  the  said  A.  P.  into  your  custody  in  the  said 

,  there  to  remain  at  hard  labour  for  the  space  of  one 

[or  less,  ae  the  case  shall  require.]    Given,  fee. 


APPENDIX.  .\.\( 

Discharge  of  an  apprentice  by  two  justice.*. 


Whereas  complaint,  fee.  [as  in  the.  last  precedent,]  we  do,  there- 
fore, by  these  presents,  discharge  the  said  A.  P.  from  his  appren- 
ticeship to  the  said  A.  M.,  any  thing  in  any  indenture,  or  inden- 
tures of  apprenticeship  betwixt  them,  or  otherwise,  to  the  con  • 
trary  notwithstanding.  Given,  &&c. 


BAIL. 

Recognisance  of  bail  of  a  person  arrested  on  suspicion  of  felony. 


Be  it  remembered,  that  on  the  --  day  of  --  ,  in  the  year  of 
our  Lord  --  ,  A.  O.,  of  --  ,  shoemaker  ;  A.  B.,  of  -  ,  tailor  ; 
and  B.  B.,  of  --  ,  blacksmith,  came  before  us,  S.  M.  and  K.  B.. 
esquires,  two  of  the  justices  of  the  peace  in  and  for  the  said 
county,  and  severally  acknowledged  'themselves  to  owe  to  the 
people  of  the  state  of  New-York,  that  is  to  say,  the  said  A.  O., 
the  sum  of  one  hundred  dollars,  and  the  said  A.  B.  and  B.  B.,  fifty 
dollars  each,  to  be  respectively  levied  of  their  lands  and  ten? 
raents,  goods  and  chattels,  if  the  said  A.  O.  shall  make  default  in 
the  performance  of  the  condition  endorsed  [or  underwritten.} 

Taken  and  acknowledged  the  day  and  year  above  written,  be 
fore  us,  A.  O. 

I.  M.  A.  B. 

R.  B.  B.  B. 

The  condition  of  this  recognisance  is  such,  that  if  the  within 
frt&oue]  bounden  A.  O.  shall  personally  appear  before  -  ,  at  the 
next  —  —  ^  to  be  holdea  in  and  foe  the  said  county,  then  arid  then; 
to  answer  to  the-jwiitLjpeople  ofcfche  state  of  New-York,  for  and 
concerning  the  felohiofrii&altmg  a'J  stealing  of  --  ,  the  property 
of  A.  M.,  of  --  -,  farmer,  Mtif^pe  suspicion  whereof  the  said  A. 
O.  stands  charged  before  us  the  said  justices,  and  to  do  and  re- 
ceive what  shall  by  the  said  court  be  then  and  there  enjoined  him, 
and  shall  not  depart  the  said  court  without  license,  then  the  with- 
in [a&ove]  written  recognisance  shall  be  void,  otherwise  to  remain 
in  full  force  and  effect. 

If  the  party  is  in  jail,  a  warrant  should  issue  for  his  deliverance, 
thus  : 


I.  M.  and  R.  B.,  esquires,  two  of  the  justices  of  the  peace  in  and 
for  the  said  county,  to  the  keeper  of  the  jail  at  —  —  ,  in  the  said 
Bounty,  greeting  : 


APPENDIX. 

Forasmuch  as  A.  O.,  of ,  in  the  said  county,  shoemaker, 

hath,  before  U3,  found  sufficient  sureties  to  appear  before  the 
justices  of  jail  delivery,  at  the  next  general  jail  delivery,  to  be 
holden  in  the  said  county,  to  answer  to  such  things  as  shall  be 
then,  on  the  behalf  of  the  people  of  the  state  of  New-York,  ob- 
jected against  him,  and  namely  to  the  felonious  taking  of  - 
{for  the  suspicion  whereof  he  was  taken  and  committed  to  you: 
said  jail;)  we  command  you,  on  the  behalf  of  the  said  people, 
ihut  if  the  said  A.  O.  do  remain  in  your  said  jail  for  the  said 
cause,  and  for  none  other,  then  you  forbear  to  detain  him  any 
longer,  but  that  you  deliver  him  thence,  and  suffer  him  to  go  at 
large,  and  that  upon  the  pain  that  will  thereon  ensue,.  Given,  &tc. 


Condition  of  a  recognisance  of  bail  taken  by  a  single  justicr. 

The  condition  of  this  recognisance  is  such,  that  if  the  above 
bounden  A.  O.  shall  personally  appear  at  the  next  general  sessions 
of  the  peace,  to  be  holden  in  and  for  the  said  rounty,  then  and 
there  to  answer  to  the  said  people  of  the  state  of  New-York,  for 
;t!)»l  concerning  the  violently  assaulting  and  beating,  &.c.  [or  the 
felonious  taking  and  stealing,  fyc.  if  cJtarged  with  petit  larceny,  or 
otherwise,  as  the  case  may  6c,]  and  to  do  and  receive  what  shall 
by  the  said  court  be  then  and  there  enjoined  him,  and  shall  nof 
depart  the  court  without  license,  then  the  above  written  recog- 
nisance =!iall  be  void,  otherwise  to  remain  in  full  force  and  effect. 


BASTARD. 

f'dunlary  examination  of  a  woman  with  child  of  a  bastard. 


The  voluntary  examination  of  A.  M.,  of  --  ,  in  the  said 
county,  single  woman,  taken  on  oath  before  me,  --  ,  one  of  the 
justices  of  the  peace  in  and  for  the  said  county,  the  --  day  ot 

Who  saith,  that  she  is  now  with  child,  and  that  the  said  child 
is  likely  to  be  born  a  bastard,  and  to  be  chargeable  to  the  town  of 
--  ,  in  the  said  county,  and  that  A.  F.,  of  -  ,  in  the  said 
county,  weaver,  is  the  father  of  the  said  child. 

The  mark  of  X    A.  M. 
Taken  and  signed  the  day  and  yew 
above  written,  before  me. 
J.  F. 


APPENDIX.  433 

^  • 

Examination  after  the.  birth. 


The,  examination  of  A.  M.,  of  —  —  ,  in  the  said  county,  single 
Woman,  taken  upon  oath  before  me,  -  ,  one  of  the  justices  of 
the  peace  in  and  for  the  said  county,  this  --  day  of  -  : 

Who  saith,  that  on  the  -  day  of  —  :  —  ,  now  last  past,  at  -  -, 
in  the  town  of  -  ,  in  the  county  aforesaid,  she,  the  said  A.  M., 
was  deliverod  of  a  (male)  bastard  child,  and  that  the  said  bastard 
child  is  likely  to  become  chargeable  to  the  said  town  of  -  ; 
and  that  A.  F.,  of  -  ,  in  the  said  county,  weaver,  <lid  get  her 
with  child  of  the  said  bastard  child. 

The  mark  of  X!    A.  M. 
Taken  and  signed  the  day  and  year 
above  written,  before  me, 
J.  P. 


Warrant  for  apprehending  the  reputed  father  before  the  birtii. 

,  ss.  To,  fye. 

Whereas  A.  M.,  of ,  in  the  said  county,  single  woman,  hath 

l»y  her  voluntary  examination,  taken  in  writing,  upon  oath,  before 
me, ,  one  of  the  justices  of  the  peace,  in  and  for  the  said  coun- 
ty, this  present  day,  declared  herself  to  be  with  child,  and  that  the 
said  child  is  likely  to  be  born  a  bastard,  and  to  be  chargeable  to 

the  town  of ,  in  the  said  county,  and  that  A.  F.,  of ,  in 

the  said  county,  weaver,  is  the  father  of  the  said  child  :  And 
whereas  O.  P.,  one  of  the  overseers  of  the  poor  of  the  town  of 
,  aforesaid,  in  order  to  indemnify  the  said  town  in  the  pre- 
mises, hath  applied  to  me  to  issue  out  my  warrant  for  the  appre- 
hending of  the  said  A.  F.,  I  do  hereby  command  you,  immedi- 
ately, to  amjrehend  the  said  A.  F.,  and  to  bring  him  before  me, 
or  some  other  of  the  justices  of  the  peace  for  the  said  county,  to. 

find  security  to  indemnify  the  said  town  of ,  or  else  to  find 

sufficient  security  for  his  appearance  at  the  next  general  sessions 
of  the  peace  to  be  holden  for  the  said  county,  and  to  abide  and 
perform  such  order  or  orders  as  shall  be  made  in  the  premises, 
in  pursuance  of  the  act  in  such  behalf  made  and  provided. 
Given,  &c. 


The  like  after  the  birth. 

-, ,  s*.    To,  8fc. 

Whereas  A.  M.,  of  — -,  in  the  said  county,  single  woihan 
[  55  ] 


434  APPENDIX." 

hath  by  her  examination,  taken  in  writing,  upon  oath,  before  me, 
,  one  of  the  justices  of  the  peace  in- and  for  the  said  coun- 
ty, declared,  that  on  the day  ok ,  now  last  past,  at  — 

in  the  town  of ,  in  the  county  aforesaid,  she,  the  said,  A.  M., 

was  delivered  of  a  (male)  bastard  child,  and  that  the  said  bastard 
child  is  likely  to  become  chargeable  to  the  said  town  of  - 
1  arid  hath  charged  A.  F.,  of  -  — ,  in  the  said  county,  weaver, 
with  having  gotten  her  with  child  of  the  said  bastard  child:  And 
whereas  O.  P.,  one  of  the  overseers  of  the  poor,  [and  sv  on,  as 
in  the  foregoing  precedent,  to  the  end.] 


Commitment  thereupon  . 


^ 

To  any  constable  of  the  town  of  -  ,  in  the  said  county,  and 
to  the  keeper  of  the  house  of  correction,  [or  common  gaol]  at  --  , 
in  the  said  county  : 

Whereas  A.  M.,  of  --  ,  single  woman,  in  her  voluntary  exa- 
mination taken.  in  writing,  upon  oath,  the  --  day  of  -  ,  now 
last  past,  before  me,  --  ,  one  of  the  justices  of  the  peace  in  and 
for  the  said  county,  hath  declared  herself  to  be  with  child,  and 
'  that  the  said  child  is'  likely  to  be  born  a  bastard,  and  to  be 
chargeable  to  the  said  town  of  --  ,  and  hath  charged  A.  F.,  of 
---  ,  gentleman,  vrith  having  gotten  her  with  child  of  the 
said  child  :  (or,  if  it  le  after  the  birth,  then  say  :  Whereas  A.  M.,  of 
--  /single  woman,  in  her  examination  taken  'in  writing  upon 
oath,  before  me,  --  ,  one  of  the  justices  of  the  peace  in  and  for 
the  said  county,  hath  declared,  that  on  the  --  day  of  --  ,  now- 
last  past,  at  -  ,  in  the  town  of  —  —  ,  in  the  county  aforesaid, 
she,  the  said  A.  M..  was  delivered  of  a  (male)  bastard  child,  and 
that  the  said  bastard  child  is  likely  to  become  chargeable  to  the 
said  town  of  --  ,  and  hath  charged  A.  F.,  of  --  ,  weaver,  with 
having  gotten  her  with  child  of  the  said  bastard  child:)  And 
whereas  the  said  A.  F.,  being  now  personally  present  before  me, 
being  brought  by  my  warrant,  upon  application  for  that  purpose 
to  me  made,  by  O.  P.,  one  of  the  overseer?  of  the  poor  of  the  said 
town,  hath  refused  to  give  security  to  indemnify  the  said  town, 
and  hath  also  refused  to  enter  into  recognisance  with  a  sufficient 
surety,  upon  condition  to  appear  at  the  next  general  sessions  of 
the  peace  to  be  holden  for  the  said  county,  and  to  abide  and  per- 
form such  order  or  orders  as  shall  be  made  in  the  premises,  in 
pursuance  of  the  act  in  such  behalf  made  and  provided.  These  are, 
therefore,  to  command  you,  the  said  constable,  to  take  and  con- 
vey the  said  A.  F.  to  the  house  of  correction,  [or  common  gaol,] 
at  --  ,  in  the  said  county,  and  to  deliver  him  to  the  keeper 
thereof,  together  with  this  warrant.  And  I  do  hereby  command 
you,  the  said  keeper  of  the  said  house  of  correction,  [or  common 


APPENDIX.  435 

gaol,]  to  receive  the  said  A.  F.  into  your  custody  in  the  said  house 
of  correction,  [or  common  gaol,]  and  him  there  safely  to  keep,  until 
he  shall  give  such  security,  or  enter  into  such  recognisance  as 
aforesaid,  or  be  otherwise  lawfully  delivered  from  thence. 
Given,  &c. 


Bond  to  indemnify  the  town. 

Know  all  men  by  these  presents,  that  we,  A.  F.,  of ,  in  the 

county  of ,  gentleman,  and  A.  S.,  of ,  farmer,  are  held 

and  firmly  bound  unto ,  overseers  of  the  poor  of  the  town  of 

— ,  in  the  said  county,  (in  trust  for  the  inhabitants  of  the  said 

town,)  in  the  sum  of dollars,  good  and  lawful  money  of  tlie 

state  of  New-York,  to  be  paid  to  the  said ,  or  their  certain 

attorney,  executors,  administrators,  or  assigns.  To  which  pay- 
ment well  and  truly  to  be  made,  we  bind  ourselves,  and  each  of 
us,  jointly  and  severally,  arid  our,  and  each  and  every  of  our 
heirs,  executors  and  administrators,  firmly  by  these  prevents. 

Sealed  with   our   seals,  and  dated  the day   of ,  in  the 

year  of  our  Lord . 

The  condition  of  this  obligation  is  such,  that  whereas  A.  M., 

'if ,  single  woman,  hath  in  and  by  her  voluntary  examination, 

taken  in  writing,  and  upon  oath  befoYe ,  one  of  the  justices  of 

the  peace,  in  and  for  the  said  county  of ,  declared  that  she  is 

with  child,  and  that  the  said  child  is  likely  to  be  born  a  bastard, 

and  to  be  chargeable  to  the  said  town  of ,  and  that  the  above 

bounden  A.  F.  is  the   father  of  the  said  child.     (If  it  be  after  tlu>. 

birth,  then  say  :  That  whereas  A.  M.,  of ,  single  woman,  in  her 

examination,  taken  in  writing,  upon  oath,  before ,  one  of  the 

justices  of  the  peace  in  and  for  the  said  county,  hath  declared, 

that  on  the day  of ,  now  last  past,  at ,  in  the  town 

of ,  in  the  county  aforesaid,  she,  the  said  A.  M.,  was  deliver- 
ed of  a  (male)  bastard  child,  and  that  the  said  bastard  child  is  like- 

ly  to  become  chargeable  to  the  town  of ,  and  hath  charged 

tile  above   bounded  A.  F.  with   having  gotten  her  with  child  of 
the.  said  bastard  child.)    If,  therefore,  the  said  A.  F.  and.  A.  S..  or 
either  of  them,  their,  or  either  of  their  heirs,  executors,  or  ad- 
ministrators, do.  and  shall  from  time  to  time,  and  at  all  t'mu's  herf- 
after,  fully  and  clearly  indemnify  and  save  harmless,  as  well  the 

above  mentioned  overseers  of  the  poor  of  the  said  touu  of , 

and  their  successors,  for  the  time  beinfc,  as  also  all   and   singular 

the  other  inhabitants  of  the  said  town  of .  which  now  en 

hereafter  shall  be,  for  the.  time   being,  of  and  from  all  manner  «.: 
costs,   taxes,  rates,   assessments,  and   charges  whatsoever,  for   or 
by   reason  of  the   birth,  education,  and  maintenance   of  tin-  said 
chili"!,  and  of  and  from  all  actions,  suits,  troubles,  and  other  ci. 
and  demands  w-h:;t-;oever.  tour!, ing  or  concerning  the  same,  then 


436  APPENDIX. 

this  present  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  effect. 

A,  F. 
A.  S. 

Sealed  and  delivered  ) 
in  the  presence  of  } 

A.  W. 

B.  W. 


Recognisance  for  the  reputed  father  to  appear  at  the  sessions 

Be.  it  remembered,  that  on  the day  of ,  in  the  year  of 

our  Lord ,  A.  F.,  of ^-,  in  the  county  aforesaid,  labourer, 

and  A.  S.,  of ,  in  the  county  aforesaid,  yeoman,  personally 

came  before  me,  J.  P.,  esquire,  one  of  the  justices  of  the  peace 
in  and  for  the  said  county,  and  acknowledged  themselves  to  owe 
to  the  people  of  the  state  of  New- York,  that  is  to  say,  the  said 

A.  F.,  the  sum  of ,  and  the  said  A   S.,  the  sum  of  -  — ,  of 

good  and  lawful  mo«ey  of  the  state  of  New- York,  to  be  made 
and  levied  of  their  goods  and  chattels,  lands  and  tenements  res- 
pectivelyj  to  the  use  of  the  said  people,  if  the  said  A.  F.  shall 
make  default  in  the  condition  under  written. 

Whereas  A.  M.,  &tc.  [as  in  the  preceding  precedents,  varying  ac- 
cording as  the  examination  was  before  or  after  birth :]  The  con- 
dition of  this  recognisance  is  such,  that  if  the  above  bounden 
A.  F.  do,  and  shall  appear  at  the  next  general  sessions  of  the 
peace  to  be  holden  for  the  said  county,  and  shall  abide  and  per- 
form such  order  or  orders  as  shall  be  made  in  the  premises,  in 
pursuance  of  the  act  in  such  case' made  and  provided,  then  this 
recognisance  to  be  void,  otherwise  to  remain  in  full  force  and 
effect. 


Summons  of  the  Overseers  to  show  cause  why  the  reputed  father 
should  not  be  discharged  out  of  prison,  ichen  no  order  fiath  been 
made  ivithin  six  weeks  after  the  birth  of  a  child*. 


ss.     To, 


Whereas  application  hath  been  made  unto  me,  J.  P.,  one  of  the 
justices  of  the 'peace  in  and  foK.  the  said  county,  residing  in  or 
near  the  town  of ,  in  the  said  county,  by  A.  F.,  now  aprt- 


*  A  form  of  the  complaint  or  application  mny  ho  easily  made  out  from 
the  summons. 


APPENDIX. 

aoner  in  the  house  of  correction,  [o?  in  the  common  gaol,]  at , 

in  the  said  county  ;  being  charged  by  A.  31..  of ,  in  (he  said 

county,  singlewoman,  in  and  by  her  voluntary  examination,  taken 

in  writing  upon  oath,  the  — day  of  -       — ,  now  last   past, 

before  me,  with  being  the  father  of  a  child,  with  which  sjie  de- 
clared herself  to  be  then  pregnant,  and  that  the  said  child  was 
likely  to  be  barn  a  bastard,  and  to  be  chargeable  to  the  said  town 

of :  And  whereas  the  said  A.  F.  was  on  the day  of 

,  last  past,  brought  before  me,  by  virtue   of  my  warrant, 

upon  application  for  that  purpose  to  me  made,  by  O.  P.,  one  of 
the  overseers  of  the  poor  of  the  said  town,  and  did  then  refuse 
to  give  security  to  indemnify  the  said  town,  and  also  refused  to 
enter  into  recognisance  with  sufficient  surety,  upon  condition  to 
appear  at  the  next  general  sessions  of  the  peace,  to  be  holden 
for  the  said  county,  to  abide  and  perform  such  order  or  orders  as 
should  be  made  in  the  premises,  in  pursuance  of  the  act  in'  such 
case  made  and  provided :  And  whereas  he,  the  said  A.  F.,  was  tin 
the day  of ,  by  me  committed  to  the  house  of  cor- 
rection, [or  gaol,]  at ,  aforesaid,  in  pursuance  of  the  act  in 

that  case  made  and  provided :  And  whereas  the  said  A.  F.  doth 
allege,  that  it  is  more  than  eight  weeks  since  the  said  A.  M.  was 
delivered  of  the  said  bastard  child,  and  that  no  order  hath  been 
made  in  the  premises  :  These  are  therefore  to  require  you,  the. 
said  constable,  to  sumrrton  the  overseers  of  the  poor  of  the  said 

town  of  ,  to   appear   before  me,  at ,  in   the   said 

county,  on the  day  of  next,  al  the   house   of 

,  on  the noon  of  the  same  day,  to  show  cause*why 

the  said  A.  F.  should  not  be  discharged  frorm  his  imprisonment, 
in  the  said  house  of  correction,  [or  gaol :]  And  Ite  you  then 
there  to  certify  what  you  shall  have  done  in  the  execution 
hereof.  Herein  fail  you  not.  Given,  .fee. 


Liberate  thereupon. 

J.  P.,  esquire,  one  of  the  justices  of  the  pence,  in  the  said 
county,  to  the  keeper  of  the  Chouse  of  correction,  [or  com  mat 
ffaoZ,]  at ,  in  the  said  county  : 

Whereas  A.  M.,  of ,  in  the  said  county,  single  woman,  in 

and  by  her  voluntary  examination,  taken  in   writing,  upon  oath. 

the day  of ,  now  last  past,  before  me,  the  Justin 

aforesaid,  declared  herself  to  be  with  child,  and  that  the  said 
child  was  likely  to  be  born  a  bastard,  and  that  A.  F.,  of—  — ,  in 
the  said  county,  farmer,  did  get  her  with  child  of  the  s.-.id  baM.mi 
child.  And  whereas  the  said  A.  F.,  now  in  your  custody,  iu  yt un- 
said house  of  correction,  [or  ggol.~\  hath  applied  to  me.  to  IK-  (!;- 
charged  from  his  imprisonmert:  And  whereas  O.  P.,  "he  of  -the 


4,  ;a  APPENDIX. 


rs  of  the  poor  of  the  said  town,  hath  this  day  appeared 
before  me,  having  been  duly  summoned  for  that  purpose,  hut 
hath  not  shown  any  cause  why  the  said  A.  F.  should  not  be  dis- 
charged as  the  statute  in  that  case  directs  :  (  Or  if  no  overseer 
appear  :  And  where  -is  it  hath  been  duly  proved  upon  the  oath  of 
A.  C.,  constable  of  -  ,  in  the  said  county,  that  the  overseers 
of  the  ptfor  of  the  said  town  of  --  ,  were  duly  summoned  to 
show"  cause  why  the  snid  A.  F.  should  not  be  discharged  from 
his  imprisonment,  as  the  statute  in  that  behalf  directs  ;  but  that 
all  of  the  said  overs^rs  have  neglected  to  appear  before  me  at 
the  time  and  place  appointed  by  my  summons  :)  And  it  appear- 
ing unto  me  on  the  oath  of  A.  W.,  of  -  ,  thai  it  is  now  morr 
than  eight  tfeeks  since  the  said  A.M.  was  delivered  of  the  s;ti<l 
bastard  child  ;  and  al?o  that  no  order  hath  been  made  in  the  p<e- 
mises  :  These  are  therefore  to  authorise  and  require  you,  the  said 
keeper  of  tho  paid  house  of  correction,  [or  £»ooZ,]  to  forbear  t-> 
detain  the  said  A.  F.  any  inojrcr  in  your  custody,  and  to  release 
him  from  thf-nce,  and  to  ^ifTV-r  him  to  go  at  large,  provided  he 
be  not  detained  in  your  custody  for  any  other  cause.  Given,  &c. 


Warrant  of  two  justices  for  the  mother,  with  a  summons  for  the  re- 
puted father,  to  »'•../' e  the  order  of  filiation  and  maintenance,  -inder 
the  first  sect,  of  the  act.  (ante,  p.  49 .) 

— ,  ss.     To,  fyc. 

Whereas  information  hath  been  made  to  us,  A.  B.  and  C.I/'., 
esquires,  two  of  the  justices  of  the  peace  in  and  for  the  said 

comity,  the  said  A.  B.  residing  in  [or  near]  the  town  of — . ,  in 

the  said  county,  as  well  upon  the  complaint  of  the  overseers  of 

the  poor  of  the  said  town,  as  on  the  oath  of  A.  M.,  of ,in  the 

said  county,  singleworaan,  that  on  the day  of ,  last  past, 

she,  the  said  A.  M.,  was  delivered  of  a  (male)  bastard  child,  at 

— ,  in  the  said  town,  and  that  A.  F.,  of ,in  the  said  county, 

tailor,  is  the  father  of  the  said  bastard  child,  and  that  the  said 
hiplard  child  is  now  living,  and  chargeable  [or  likely  to  become 
chargeable]  to  the  said  town  of :  These  are  therefore  to  com- 
mand you  to  bring  the  said  A.  M.  before  us,  at  the  hou^e  of , 

in ,  in  the  said  county,  on  the —  day  of ,  at  the 

hour  of ,  i»  the  afternoon  of  the  same  day,  to  be  by  us  fur- 

t!,,,r  examined  tokening  the  premiss,  and  that  you  give  notice 
f  utitn  the  said  A.  F.,  that  he  may  likewise  he  at  the  time 
and  p* :««•«?  aforesaid,  to  make  his  lawful  defence  :  To  the  end  that, 
•jpon  thf  iMajnination  of  the  cause  and  circumstance,  we  may 
take  such  order  therein  as  to  right  doth  appertain.  And  what 
you  shall  do  in  the  execution  hereof,  you  are  to  make  known 
unto  us  at  the  time  and  place  aforesaid.  Given,  i<c. 


•APPENDIX, 

Order  of  JUiaiion  am,&  maintenance. 


ss. 


The  order  of  J.  P.  and  K.  P.,  esquired,  two  of  the  justices  of  the. 
peace  in  and  fur   the  said  county,   the  said  J.  P. 

wear]  the  town  of ,  in  the  said  county,  -  day 

of ,  in  the  year  of  our  Lord ,  concerning  a  (male)  h, 

lately  born  in  the  town  of ,  aforesaid,  of  tin;  body  of 

A.  M.,  single  woman : 

\\hereasit  hath  appeared  onto  us,  the  said  justices,  as 
upon  the  complaint  of  the  overseers  of  the  poor  of  the  said 

of ,  P.S  upon  the  oath  of  the  said  A.  M.,  that  she,  the  said  A.  M., 

on  the day  of ,  now  last  past,'was  delivered  of  a  (male) 

1  o^ild,  at ,  in  the  town  of ,  in  the  said  count' 

that  the  said   bastard  child  is  now  chaigea'  d    t«;vvn 

of , >;nd  likely  so  to  continue;  and  further,  that  A  F.,  of , 

said  county,  farmer,  did  beget  the  said  bastard  child  on  the 
body  of  her,  the  said  A.  M.  And  whertM-;  :hr  said  A.  F.  ha«h  ap- 
peared before  us,  in  pursuance  of  ot;r  s'mumms  for  that  purj.usf. 
but  hath  not  shown  any  sufficient  c'ause  why  In-,  the  said  A.  F., 
shall  not  be  th&  reputed  father  of  tile  said  bastard  child  :  (Or;  And 
whereas  it  hath  beeo  duly  proved  to  us  upi  u,  the  said  A.  F. 

'hath  be  on  duly  sunotnontd  to  appear  h  •.•.!  justices, 

to  the  end  \ve  might  examine  i;ii»)  the  cause  and  circumstance  of 
the  premises ;  and  whereas  he,  the  said  A.  F.,  hath  neglected  to 
appear  before  us,  according  to  the  paid  summons  :)  We,  therefore, 
upon  examinat'  •.  ause,  and  rivi.-uiiistance  of  the  premises, 

as  well  upon  the  oath  of  the  said  A.  M.  as  otherwise,  do  hereby 
adjudge  him,  the  said  A,  F.,  to  be  the  reputed  father  of  the  said 
bastard  child. 

And  thereupon,  we  do  order,  as  well  for  the  better  relief  of 

the  said  town  of ,  as  for  the  sustentation  and  relief  of  the  said 

bastard  child,  that  the  said  A.  F.  shall,  and  do  forthwith,  upon 
notice  of  this,  our  order,  pay,  or  cause  to  be  paid  tutho  said  ovei- 

seers  of  the  poor  of  the  said  town  of ,  or  to  one  of  them,  the 

sum  of ,  for  and  towards  the  lying-in  of  the  said  A.  M.,  and 

the  maintenance  of  the  said  bastard  child  to  the  time  of  makii,,, 
this  our  ordi-r. 

And  wre  do  also,  hereby  further  order,  that  the  said  A,  P.  shall 
likewise  pay,  or  cause  to  be  paid  to  the  overseer*  of  the  poor  oi 

the  saJd  town  of ,  for  the  time  being,  or  to  scfme  or  one  of 

tfieni,  the  sum  of ,  weekly  and  every  week,  from  this  present 

time,  for  and  towards  the  keeping,  sustentation,  and  maintenance 
of  the  said  bastard  child,  for  and  during  so  long  time  as  the  said 
bastard  child  shall  be  chargeable  to  the  said  town  of . 

And  we  do  further  order,  that  the  said  A.  M.  shall  also  pay,  or 
cause  to  be  paid  to  the  said  overseers  of  the   poor  of  the 
town  of ,  for  the   time   bi-ing,  or  to  some  one  of  them,  tin; 


440  APPENDIX. 

\ 

sum  of weekly  and  every  week,  so  long  as  the  said  bastard 

child  shall  be  chargeable  to  die  said  town  of ,  in  case  she 

shall  not  nurse  and  take  charge  of  the  said  child  herself. 

Given  under  our  hands  and  seals,  the  day  and  year  first  above 
written. 


Commitment  far  not  obeying  the  order  of  filiation. 

:,  ss. 

To  any  constable  of  the  town  of ,  in  the  said  county,  and 

to  the  keeper  of  the  ho'use  of  correction,  [or  common  gaol,]  at 
,  in  the  said  county. 

Whereas  by  an  order,  under  the  hands  and  seals  of  us,  J.  P. 
and  K.  P.,  two  of  the  justices  of  the  peace  in  and  for  the  said 

county,  the  said  J.  P.,  residing  in  [or  near]  the  town  of  ,  in 

the  said  county,  A.  F.,  of ,  in  the  said  county,  farmer,  is  ad- 
judged to  be  the  reputed  father  of  a  male  bastard  child,  lately 

born  of  the  body  of  A.  51.,  of ,  singlewoman,  at ,  in  the 

said  town  of  :  And  whereas  it  was  in  and  by  such  order 

ordered1,  [here  insert  the  substance  of  the  order:]  And  where- 
as it  appears  to  us,  the  said  justices,  on  the  oath  of  O.  P., 

of  ,  that  the:  said  A.  F.  had  due  notice  of  the  said  order, 

a  true  copy  thereof  in  writing  having  been  personally  delivered 

to  him,  the  said  A.  F.,  on the day  of ,  last  past,  by 

the  said  O.  P. :  And  whereas  the  said  A.  F.  hath  not  observed 
nor  performed  the  said  order :  These  are,  therefore,  to  charge 
and  command  you,  the  said  constable,  forthwith  to  apprehend 
the  said  A.  F.,  and  him  safely  to  convey  to  the  common  gaol  at 

,  in  the  said  county,  and  there  deliver  him  to  the  keeper 

thereof,  together  with  this  precept.  And  we  do  also  hereby 
command  you,  the  said  keeper  of  the  said  common  gaol,  to  re- 
ceive, the  said  A.  F.  into  your  custody  in  the  said  common  gaol, 
and  him  there  "safely  to  keep,  except  he  shall  put  in  sufficient 
surety  to  perform  the  said  order,  or  personally  to  appear  at  the 
next  general  sessions  of  the  peace  to  be  holden  in  and  for  the  said 
county;  and  also  to  abidevsuch  order  as  the  said  justices  of  the 
peace,  or  the  major  part  of  them,  in  their  said  sessions,  shall 
make  in  that  behalf,  if  they  then  and  there  shall  make  any  ;  and 
if  at  the  said  sessions,  the  said  justices  shall  make  no  other 
order,  then  to  abide  and  perform  the  order  before  made. 
Given,  &c. 


APPENDIX. 

of  a  recognisance  to  appear  at  the  nert  sessions  afitr  the, 
order,  not  performed. 

Whereas,  by  an  order  under  the  hands  and  seals  of  us,  &te., 

A-  3.,  of ,  &c.,  is  adjudged  to  be  the  reputed  father  of  a  bastard 

child,  lately  born  of  the  body  of  A.  M.,  of ,  single  -woman, 

at ,  in  the  said  town  of :  [and  then  set  forth  what    wars 

ordered  therein  further:]  And  whereas  the  said  A.  F.  hath  not  ob- 
served, nor  performed  the  said  order;  the  condition,  therefore, 
of  this  recognisance  is  such,  that  if  the  above  bounden  A.  F.  shall 
observe  and  perform  the  said  order,  or  shall  personally  appear  at 
the  next  general  sessions  of  the  peace,  to  be  holden  in  and  for  thr; 
said  county,  and  shall  then  and  there  abide  such  order  as  shall 
be  then  made  by  the  said  justices  of  the  peace,  or  the  major 
part  of  them,  in  their  said  sessions,  concerning  the  said  bastard 
child,  if  they  then  and  there  shall  make  any  ;  and  if  at  the  s;tid 
sessions  the  said  justices  shall  make  no  other  order,  then  U  abide 
and  perform  the  order  before  made  by  us  in  the  premises  afore 
said,  then  this  recognisance  to  be  void,  otherwise  to  remain  in 
full  force  and  effect. 


Order  to  seize  the  goods,  Sfc.  of  the  father  or  mother  of  bastard  chd- 
dren,  who  shall  run  away. 


To  the  overseers  of  the  poor  of  the  town  of ,  in  the  said 

county.  f, 

Whereas  A.  C.  and  B.  C.,  overseers  of  the  poor  of  the  town  of 

-« ,  in  the  said  county,  have  made  complaint  unto  us  J.  P.  and 

K- P.,  two  of  the  justices  of  the  peace  in  and  for  thf  said  county, 

that  Jl.  F.,  late  of  the  said  town  of ,  hath  run  away  out  of  the 

said  town,  and  that  the  place  of  his  abode  h  not  known  ;  and  that 

the  said  A.  F.  hath  left  his  male  bastard  child,  aged years, 

and  born  within  the  said  town  of ,  upon  the  charge  of  the 

said  town,  although  the  said  A.  F.  hath  an  estate  sufficient  to 
discharge  such  town  from  the  charge  thereof :  And  whereas  we, 
the  said  justices,  having  duly  examined  into  the  cause  and  cir- 
cumstances of  the  said  complaint,  as  well  upon  oath  as  other- 
wise, it  doth  appear  unto  us,  and  we  do  adjgdge  that  the  said 
complaint  is  true  ;  and  we  do  also  adjudge  him,  the  said  A.  F., 
to  bo  the  reputed  father  of  the  said  bastard  child.  These  an-, 
therefore,  in  the  name  of  the  people  of  the  state  of  New-York, 
to  authorize  you,  the  said  overseers  of  the  poor  of  the  said 
town,  to  ?eize  and  take  the  goods  and  chattels,  and  to  let  out  and 
recci'-o  the  annual  rents  and  profits  of  the  lands  and  tenement- of 
the  said  A.  F.,  so  absconding  a~  aforesaid,  towards  the  bringing 

[56] 


APPENDIX. 

cip  and  providing  for  such  bastard  child  ;  and  you  are  hereby  re- 
quired to  attend  at  the  next  general  sessions  of  the  peace  to  be 
holden  in  and  for  the  said  county,  in  order  that  the  said  seizure 
may  be  then  and  there  allowed  of  and  confirmed,  and  you  fur- 
ther directed  in  the  premises  according  to  the  form  of  the  statute 
in  that  case  made  and  provided.  Given,  &c. 


CERTIORARI. 

Certiorari  to  the  sessions  to  remove  an  indictment. 

The  people  of  the  state  of  New-York :  To  our  justices  of  thfr 

peace  of  the"  county  of ,  in  our  court  of  general  sessions  of 

the  peace  in  the  said  county,  greeting :  We  being  willing,  for 
certain  reasons,  that  a  certain  indictment  for  a  trespass  and  as- 
sault, whereof is  indicted  in  our  said  court,  before  you,  as 

iti?  said,  be  determined  in  our  supreme  court  of  judicature,  and 
not  elsewhere  ;  do  command  you,  and  every  of  you,  that  you, 
or  one  or  more  of  you,  do  send  under  your  seals,  or  the  seal  or 
seals  of  one  or  more  of  you,  before  ourjustices  of  our  supremo 

court  of  judicature,  at ,  on  ,  the  said  indictment,  with 

all  things  touching  the  same,  together  with  this  our  writ,  that  our 
said  court  may  further  thereupon  cause  to  be  done  therein  what, 
of  right  ought  to  be  done.  Witness,  Smith  Thompson,  esquire, 
our  chief  justice  at ,  the day  of . 

,  attorney.  ,  clerk. 

Return  thereon  indorsed. 

The  execution   of  this  writ  appears  in  the   schedule  thereto 
annexed. 

A.  B.,  justice. 

Schedule. 

,  M. 

We, ,  justices  of  the  peacQ  .of  the  said  county  of ,  by 

virtue  of  the  writ  to  us  delivered,  do,  under  our  seals,  certify  un- 
to the  justices  of  the  people  of  the  state  of  New-York,  of  the  su- 
preme court  of  judicature  of  the  same  people,  the  indictment  of 
which  mention  is  made  in  the  said  writ,  together  with  all  matters 
touching  the  said  indictment.  In  witness  whereof,  we  have  to 
these  presents  set  our  seals.  Given  at -,  the day  of . 


APPENDIX. 

Ctrtiorari  to  a  justice  to  remove  a  judgment. 

The  people,  Sic.  To  A.  B.,  esquire,  one  of  the  justices  of  the 

peace  for  o*r  county  of :  Greeting.     Whereas ,  lately 

In  a  court  held  before  you,  impleaded  one ,  in  an  action  of 

— ,  and  such  proceedings  have  been  had  in  the  said  cause  that 
judgment  hath  been  given  by  you  in  your  said  court  against  the 

said ,  as  it  is  alleged ;  and  we  being  willing,  for  certain  reasons, 

that  the  record  of  the  said  proceedings  and  judgment  should  be 
certified  by  you  to  our  supreme  court,  do  therefore  command 
you,  that  you  send,  under  your  seal,  the  record'  of  the  said  pro- 
ceedings and  judgment,  with  the  process,  pleadings,  and  other 
things  touching  the  same,  to  our  justices  of  our  supreme  court  of 

judicature,  at ,  on ,  in  as  full  and  ample  a  manner  as  the 

same  remain  before  you,  together  with  this  writ,  that  our  said 
court  may  further  cause  to  be  done  herein  what  of  right  ought  tw 
be  done.  Witness,  &E.C. 

Return  thereon,  indorsed. 

The  execution  of  this  writ  appears  iu  the  schedule  annexed. 

A.  B.,  justice. 

Schedule.. 

,  ss, 

I,  A.  B»,  one  of  the  justices  of  the  peace  for  the  county  nf'*;^ 
said,  do  certify  to  the  justices  of  the  people  of  the  state  of  New- 
Vork,  of  the  supreme  court  of  judicature  of  the  same  people,  that 

on ,  at ,  in  the  county  aforesaid,  in  the  said  writ  named, 

complained  before  me  against  E.  F. ;  also,  in  the  said  writ  named, 
of  a  plea  of  trespass,  [or  trespass  on  the  cose,]  to  his  damage  twt-n- 
ty-five  dollars,  [or,  if  in  debt ;  of  a  plea  that  the  said  E.  F.  render 
la  the  said  C.  D.  twenty-Jive  dollars,  which  he  oircs  to,  and  unjustly 
detaa,KS  from  him,]  and  asked  of  me  process  on  his  said  complaint, 
whereupon,  in  pursuance  of  the  authority  given  to  me,  in  and  by 
the  a<;t  for  the  recovery  of  debts  to  the  value  of  twenty-five  dol- 
lars, I  issued  a  summons,  directed  to  any  constable  in  the  said 
county,  commanding  him  to  summon  the  said  defendant  to  ap- 
pear before  me,  at — — ,  on .  to  answer  the  said  plaintiff,  in  a 

plea,  kc. ;  which  said  summons,  on  the  day  mentioned  therein 
for  the  return,  was  delivered  to  me  by  G.  II.,  one  of  the  con- 
stables of  the  town  of—  — ,  in  the  said  county,  with  an  indorse- 
ment thereon,  signed  by  him,  that  he  personally  served  the  same 

on  the  defendant,  on  the day  of .     And  1  do  also  certify 

that  on  the  said day  of ,  as  well  the  said  plaintiff  as  the 

said  defendant  appeared  before  me,  at ,  in  the  said  conn" 

and  the  said  plain  tiff  declared  Hguinst  the  said  defendant.,  that  th* 


444  APPENDIX. 

said  defendant  TV  as  indebted  to  the  said  plaintiff  in  the  sura  of 
twentj'-five  dollars,  for  goods,  wares,  and  merchandise,  sold  and 
delivered  by  the  said  plaintiff  to  the  said  defendant,  at  the  request 
of  the  said  defendant,  and  that  the  said  defendant  being  so  in- 
debted, in  consideration  thereof,  promised  and  undertook  to  pay 
the  said  plaintiff  the  said  sum  of  twenty-five  dollars,  when  he,  the 
said  defendant,  should  be  thereunto  afterwards  requested  :  [or 
otherwise,  as  the  case  may  be:]  and  the  said  defendant  being  call- 
ed upon  to  answer  the  said  complaint,  said,  that  he  did  not  pro- 
mise and  undertake  in  manner  and  form,  as  the  said  plaintiff  had 
above  thereof  complained  against  him,  [or,  that  he  toas  not  guilty 
of  the  said  supposed  trespasses,  Sfc. ;  or  that  he  did  not  oive  the  said 
sum,  fyc.,  as  the  case  may  be.]  And  issue  being  so  joined  between 
the  said  parties,  the  plaintiff  demanded  that  the  same  should  be 
tried  by  a  jury,  upon  which  demand  I  issued  a  venire,  directed  to 
any  constable  of  the  town  of — — ,  in  the  said  county,  command- 
ing him  to  summon  twelve  good  and  lawful  men,  being  freehold- 
ers of  such  town,  and  who  should  be  in  no  wise  of  kin  to  the  plain- 
tiff or  defendant,  nor  interested  in  the  said  suit,  to  be  and  appear 

before  me  at ,  in  the  said  town,  on ,  to»make  a  jury  for 

the  trial  of  the  action  aforesaid,  to  which  said  day  and  place  I  ad- 
journed the  said  cause  ;  at  which  time  and  place  G.  H.,  one  of  the 

constables  of  the  said  town  of ,  returned  the  said  venire  to 

me,  with  a  panel,  containing  the  names  of  twelve  persons  sum- 
moned by  him  for  the  jury  aforesaid.  And  I  do  also  certify  that 
on  the  day,  and  at  the  place  last  aforesaid,  the  said  plaintiff  and 
defendant  appeared  before  me,  and  the  names  of  the  persons  so 
impannelled  being  written  on  ballots  and  drawn  for  as  is  prescri- 
bed by  the  act  aforesaid,  six  of  the  persons  so  impannelled,  to 
wit :  N.  O.,  P.  Q.,  &cc.  being  [were]  duty  elected,  tried,  and  sworn, 
well  and  truly  to  try  the  matter  in  difference  between  the  parties 
aforesaid,  and  to  give  a.  true  verdict,  according  to  evidence,  after 
hearing  [if  the  evidence  is  set  forth  in  the  return,  say,  proceeded  to 
hear]  the  proofs  and  allegations  of  the  parties  which  were  deliver- 

*  ed  in  public  in  their  presence,  [and  thereupon  one  S.  L.,  a  witness, 
produced  on  the  part  of  the  said  plaintiff,  being  duly  sworn  by  me,  the 
said  justice,  testified,  Sfc. ;  whereupon  the  said  jurors,  after  hearing 
the  said  testimony,]  *said,  upon  their  oaths,  that  the  said  defend- 
ant did  promise  and  undertake,  in  manner  and  forms  as  the  said 
plaintiff  hath  complained  against  him,  [or  as  the  issue  may  be,]  and 
they  assessed  the;  damages  of  the  said  plaintiff,  by  occasion  of  the 

1  premises,  over  and  above  his  costs,  to :  Whereupon,  I,  the 

said  justice,  in  pursuance  of  the  directions  of  the  said  act,  did 
then  and  there  adjudge  that  the  said  plaintiff  recover  against  the 
said  defendant  the  said  sum  of ,  by  the  jury  between  the 


*  If  the  jury  retired  to  deliberate  on  their  verdict,  it  should  be  ftated; 
as  also,  that  a  constable  was  sworn  to  attend  them. 


APPENDIX.  445 

said  parties,  as  aforesaid  assessed,  and  also ,  for  his  costs  in 

prosecuting  his  said  complaint  before  me,  [according  to  thr  hill 
thereof,  hereto  annexed.]  All  which  I  send  with  the  process,  plead- 
ings, and  other  things,  touching  the  aforesaid  proceedings  and 
judgment,  in  as  full  and  ample  a  manner  as  the  same  remain  be- 
fore me,  as  within  I  am  commanded.  Given  under  my  hand  am.' 

seal,  this day  nf . 

\.    B.,  justice 


COMMITMENT. 

Mittimus  for  felony. 

To  the  keeper  of  the  gaol  at  -  ,  in  the  said  county. 

Whereas  A.  O.,  late  of  --  ,  in  the  said  county,  labourer,  ha-tLi 
been  arrested  by  the  constable  of  -  ,  in  the  said  county,  for  SUP 
picion  of  a  felony  by  him,  as  it  is  said,  committed,  in  stealing  a 
black  mare  of  the  value  of  twenty  dollars,  the  property  of  A.  P., 
of  --  ,  in  the  said  county,  farmer:  Therefore,  on  the  behalf  of 
the  people  of  the  state  of  New-York,  I  command  you  that  you 
veceive  the  said1  A.  O.  into  your  custody  in  the  said  gaol,  there  tn 
remain  until  he  be  delivered  by  due  course  of  law.  Given  under 
my  hand  and  seal  at  --  ,  in  the  said  county,  the  --  day  of 
--  ,  in  the  year  -  . 

form  of  a  warrant  of  commitment  in  general. 


To  any  constable  of  the  town  of  --  ,  in  the  said  county,  and 
to  the  keeper  of  the  gaol  at  -  ,  in  the  said  county. 

These  are  to  command  you,  the  said  constable,  in  the  name  of 
the  people  of  the  state  of  New-York,  forthwith  to  convoy  and 
deliver  into  the  custody  of  the  said  keeper  of  the  said  gaol  the 
body  of  A.  O.,  charged  upon  the  oath  of  A.  P.,  of  --  .  ip  the 
said  county  --  ,  before  me  with  [here  specify  ihc  offence.]  And 
you,  the  said  keeper,  are  hereby  required  to  receive  the  said 
A.  O.  into  your  custody  in  the"  said  gaol,  and  him  there  stifely  1<> 
keep,  [here  set  forth  the  time,]  or  until  he  shall  be  thence  ddiv  r<  •' 
by  due  course  ofhw.  Herein  fail  you  not.  Given,  kc. 


44*>  APPENDIX 

CONVICTION. 

General  form  of  conviction. 
Uottnty  of  ) 

Be  it  remembered,  that  on  the day    of ,   in  tin- 
year    of  our  Lord ,    at ,     in     the     county  of    - 

A.  J.,  of ,   in  th«    said    county    of ,  blacksmith,  [whd 

prosecutes,  as  well  for  the  people  of 'the  stale  of  Neiv-York,  as 
for  himself,  in  this  behalf ;  or,  ivho  prosecutes  as  well  for  the 

poor  of  the   town   of ,  in  the   county  of ,  as  for  himself 

in  this  behalf,]  in  his  proper  person  cometh  before   me ,  one 

of  the  justices  assigned  to  keep  the  peace  in  and  for  the  said 
county,  and  also  to  hear  and  determine  divers  felonies,  tres- 
passes, and  other  misdemeanors  in  the  said  county  committed. 

and  [on  his  corporal  oath]  giveth  me, ,  the  said  justice,  to 

understand  and   be   informed,  that  within ,  now  last  past, 

that  is  to  say,  on  the day  of  -  — ,  one  A.  O.,  of ,  in 

the  county  of  -  — ,  shoemaker,  (here  insert  the  information.) 
against  the  form  of  the  statute  in  such  case  made  and  provided  : 
•whereby,  and  by  force  of  the  said  statute,  the  said  A.  O.  hath 

forfeited,  for  his  said  offence,  the  sum  of  ,  of  lawful  money 

of  the  state  of  New-York,  and  thereupon  the  said  A.  I.  humbly 
prays  the  judgment  of  me,  the  said  justice,  in  the  premises,  ac- 
cording to  the  form  of  the  Statute  in  such  case  made  and  pro- 
vided, and  that  the  said  A.  O.  may  be  summoned  to  answer  the 
said  premises,  and  to  make  his  defence  before  me  the  said  justice.* 
Whereupon  the  said  A.  O.,  having  been  duly  summoned  in  this 
behalf,  to  answer  and  make  his  defence  to  the  said  information, 
and  to  the  saiti  offence  therein  charged  upon  him,  before  me,  the 

said  justice,  afterward*,  that  is  to  say,  upon  the day  of ,  in 

the  year  aforesaid,  at aforesaid,  in  the  said  county  of , 

appears,  and  is  present  before  me,  the  said  justice,  in  order  to  an- 
swer and  make  good  his  defence  to  the  said  information,  and  the 
said  offence  therein  charged  upon  him  as  aforesaid  ;  and  he,  the 
said  A.  ().,  having  heard  the  same,  is  asked  by  me,  the  said  jus- 
tice, if  he  can  say  any  thing  for  himself,  why  lw»,  the  said  A.  O., 
should  not  be  convicted  of  the  premises  above  charged  upon 
him  in  form  afore-paid  ;  (if  the  offender  confesses  the  fact,  say.)  and 
thereupon  the  said  A.  O.  freely  and  voluntarily  confesses  the  said 


*  Tf  judgment  were  given  against  tlie  defendant  on  his  default  in  not  ap- 
pearing, the  issuing  of  the  summons,  the  non-appearance  of  the  defeml- 
•Hiit,  and  proof,  on  oath,  cf  the  service  of  ihe  Miiunions,  :hoi;ld  be  par- 
v'r'ilar'y  sia'ed,  and  that  then  the  justice  proceeded  to  examine  into  ihe 
;r'jtb  of  Ihe  information. 


APPENDIX.  447 

information,  and  the  said  offence,  and  all  and  singular  the  matter* 
and  things  therein  contained  to  be  true,  and  dotli  not  show  any 
cause  before  me,  the  said  justice,  why  he  should  not  he  convict- 
ed of  the  said  offence  charged  in  the  said  information,  [and  Ifttn 
go  immediately  to  the  judgment,]  who  pleads  that  he  is  not  guilty  of 

the  saidflffence.  Nevertheless,  on  the  said day  of  -  — ,  in 

the  year  aforesaid,  at aforesaid,   in  the  said  county  of , 

one  credible  witness,  to  wit,  A.  W.,  of ,  in  the  county  of . 

tailor,  come*  before  me,  the  said  justice,  in  hU  proper  person, 
and  being  then  and  there  duly  sworn  on  his  corporal  oath  by  me, 
the  said  justice,  administered,  deposes,  swears,  and  upon  his 
oath  aforesaid,  says,  in  the  presence  and  bearing  of  the  said 
A.  O.,  that  [here  set  forth  the  facts  sworn  to,  and  thtn  the  cross-(xa- 
mination,  if  any  ;  then  proceed  in  like  manner  to  state  the  tsstimtinxj 
of  the  other  witnesses,  if  more  loere  examined]  whereupon  at!  ami 
singular  the  matters  and  things  in  the  said  information  au  !  efi 
deuce  contained,  being  by  the  said  A.  O.  then  heard  and  fully  u:i 
derstood,  the  said  A.  O.  is  by  me,  the  said  justice,  aaked  \vi 
he  hath  to  offer  or  say  in  his  defence  against  the  said  information 
and  offence,  and  in  answer  to  the  evidence  given  as  before  men 
tioned,  and  what  he  hath  to  say  why  he  should  not  be  convicted  of 
the  premises  so  charged  upon  him,  and  the  said  A.  O.  thereupon 
saith,  that  [here  state  the  defence  and  the  evidence  in  support  of  it,  if 
any  ;  or  if  the  party,  in  this  stage  of  the  proceedings,  confess  the  of- 
fence, his  confession  should  be  stated  :\*  and  forasmuch  as  upoi> 
hearing  and  fully  understanding  the  said  information,  and  the  evi 
dence  given  as  above  mentioned,  and  also  upon  hearing  and  fully 
understanding  all  and  singular  the  matters  and  things  !>y  the.  said 
A.  O.  alleged  and  proved  in  his  defence,  touching  the  premises  ia 
the  said  information  specified,  it  manifestly  appears  to  me,  the 
said  justice,  that  the  said  A.  O.  is  guilty  of  tho  premises  above 
charged  upon  him  in  the  said  information ;  it  is  therefore  ad- 
judged by  me,  the  said  justice,  upon  due  proof  thereof  made  to 
my  satisfaction,  that  all  and  singular  the  matters  and  things  in  the 
said  information  contained,  are  true,  and  thereupon  I,  the  said 
justice,  on,  &.C.,  at,  fee.,  do  convict  the  said  A.  O.  of  the  offence 
aforesaid,  in  and  by  the  said  information  charged  against  him, 
and  he,  the  said  A.  O.,  is  hereby  convicted  thereof  by  me,  the 
said  justice,  upon  the  oath  of  one  [or  tu>o]  credible,  witness,  [or 
witnesses,]  [or  upon  his  free  and  voluntary  confession,]  according- 
to  the  form  of  the  statute  in  such  case  made  and  provided ;  and 
I,  the  said  justice,  do  adjudge  that  the  said  A.  O.,  for  his  offence 

aforesaid,  hath  forfeited  the  sum  of ,  of  lawful  money  of  llu 

state  of  New-York,  to  be  distributed  as  the  law  directs ;  and  1 


*  From  the  precedent  in  Burns'  tit.  Conviction,  whi.-h  I  liave  princi- 
pally followed,  it  seem?,  that  where  the  evidence  hi  Mipport  of  the  de- 
fence is  not  sufficient  to  entitle  the  party  to  ah  acquittal,  it  u  not  nt 
cessary  to  state  sui'h  evidence. 


. 


443  APPENDIA. 

do  further  adjudge,  that  the  said  A.  O.  do  forthwith  pay  to  the 

said  A.  I.,  the  sum  of ,  of  like  lawful  money,  for  his  costs 

in  and  about  the  premises.     In  witness   whereof,  I,  th«  said  jus- 
tice, to  this  record  of  conviction,  have  put  my  hand  and  seal,  at 

,  aforesaid,  in  the  said  county  of ,  the  said  day  of g. 

in  the  year  of  our  Lord . 


FORCIBLE  ENTRY  AND  DETAINER. 

Indictment  for  a  forcible  entry  and  detainer. 

,        ,  P<? 

The  jurors  for  the  people  of  the  state  of  New- York,  upon 

Iheiroath,  present,  that  A.  I.,  late  of  the  town  of  ,  in  the 

county  aforesaid,  gentleman,  on  the day  of ,  in  the 

year ,  was  possessed  of  a  certain  messuage  with  the  appur- 

lenances,  situate,  lying  and  being  in ,  the  town  aforesaid,  in 

the  county  aforesaid,  for  a  certain  term  of  years  then  and  still  to 
come  and  unexpired,  and  being  so  possessed  thereof,  one  A.  O., 

late  of ,  in  the  said  county,  farmer,  afterwards,  to  wit,  the  said 

day  of  — ; — ,  rn  the  year  aforesaid,  in  the  town  and  county 

aforesaid,  with  force  and  arms,  and  with  strong  hand,  unlawfully 
did  enter,  and  the  said  A.  I.,  from  the  peaceable  possession  of 
the  said  messuage,  with  the  appurtenances  aforesaid,  then  and 
there,  wi,th  force  and  arms,  and  with  strong  hand,  unlawfully  did 
expel  and  put  out;  and  the  said  A.  I.,  from  the  possession  thereof, 
so  as  aforesaid  with  force  and  arms,  nnd  with  strong  hand,  being 
unlawfully  expelled  and  put  out,  the  said  A.  O.,  him  the  said  A. 

I.  from  the  aforesaid day  of ,  in  the  year  aforesaid, 

until  the  day  of  the  taking  this  inquisition,  from  the  possession  of 
the  said  messuage,  with  the  appurtenances  aforesaid,  with  force 
and  arms,  and  with  strong  hand,  unlawfully  and  injuriously  then 
nnd  there  did  keep  out,  and  doth  still  keep  out,  to  the  great  da- 
mage of  the  said  A.  I.,  against  the  peace  of  the  said  people,  and 
against  the  form  of  the  statute  in  that  case  made  and  provided. 

.TVb/e.-'-If  it  is  a  freehold,  that  is,  an  estate  in  fee,  or  for  life, 
then  the  party  must  be  said  to  be  seised  thereof;  and  consequent- 
ly he  must  be  thereof  disseised ;  but  of  a  lesser  estate,  as  for  year?, 
or  at  will,  he  cannot  be  said  to  be  seised,  but  only  possessed,  and 
fl.ipn  he  must  be  expelled,  ejected,  amoved,  or  the  like. 


Record  of  conviction  of  a  forcible  detainer. 

The  following  record  and  mittimus  are  taken  from  the  case  ot 
Mather,  v.  Hood,  8  Johns.  Rep.  44.  The  form  of  the  record  JU 
said  by  the  court  to  be,  "agreeable  to  established  precedents/5 


APPENDIX.  jj'J 

ifeneea  eoiuity,  ss. 

Be  it  remembered,  that  en  the  2d  day  of  August,  in  the  year 
of  our  Lord,  1^,0:;,  at  the  town  of  Fayette,  in  the  county  <>: 
neca,  aforesaid,  Elisha  Hartshorne  complains  to  me,  John  Hood, 
esquire,  one  of  the  justices  of  the  people  of  the  state  of  !Sew- 
York,  assigned  to  keep  the  pi-act-  in  the  said  county,  and  also  to 
hear  and  determine  divers  felonies,  trespasses,  and  other  misde- 
meanors in  the  said  county  committed,  that  Ztrhariah  Mather, 
Eleazfr  P.  Mather,  Lucius  Mather,  David  Dumond,  James  Huff, 
William  Updikt,  and  Daniel  Tucker,  of  the  said  town  ofFayette, 
into  the  messuage  of  him  the  said  Elijah,  in  and  upon  certain  te- 
nements and  possessions,  situate  in  the  said  town  ofFayette,  did 
enter,  and  him  the  said  Elijah  from  the  messuage,  tenement,  and 
possession  aforesaid,  whereof  the  said  Elijah,  at  the  time  of 
the  entry  aforesaid  was  seised  and  possessed,  unlawfully  ejected, 
expelled,  and  amoved,  and  the  said  messuage,  tenement,  and 
possession,  from  him  the  said  Elijah,  unlawfully,  with  strong 
hand  and  armed  power,  do  yet  hold,  and  from  him  detain, 
against  the  form  of  the  act  in  such  case  made  and  provided. 
Whereupon  the  said  Elijah,  then,  to  wit,  on  the  said  2d  day  of 
August,  at  the  town  of  Fayette,  aforesaid,  prays  of  me,  so  being 
a  justice  as  aforesaid,  to  him  in  this  behalf,  that  a  dm;  remedy  liu 
provided,  according  to  the  form  of  the  act  aforesaid,  which  com- 
plaint and  prayer  by  me,  the  said  justice,  being  heard,  I,  the  said 
John  Hood,  esquire,  justice  ats  aforesaid,  to  the  said  tenement, 
messuage,  and  possession,  have,  come,  and  do  then  and  there  find 
and  see  the  aforesaid  Zechariah  .Mather,  Etcnzer  P.  Mather,  Lucius 
Mathtr,  David  Dumond,  James  Huff,  ff'iliium  Updike,  and  Da- 
niel Tucker,  the  aforesaid  messuage,  tenement,  and  possession, 
with  force  of  arms  unlawfully,  with  strong  hand  au<i  armed  power, 
detaining,  against  the  form  of  I  he  act  in  such  case  made  and  pro- 
vided, according  as  he,  the  said  Elijah,  so  as  aforesaid,  hath  to 
me  complained.  Therefore,  it  i*  considered  by  the  said  justice, 
that  the  aforesaid  Ztchariah  Mather,  Elcazer  P.  Mather,  L< 
Mather,  David  Dumond,  James  Huff,  William  Updike,  and  Da- 
niel Tucker,  of  the  detaining  aforesaid,  with  strong  hand,  by  my 
own  proper  view,  then  and  there  as  aforesaid  had,  are  convicted, 
and  every  of  them  are  convicted,  according  to  the  form  of  the 
act  aforesaid.  Whereupon  I,  the  said  justice,  upon  every  of  the 
aforesaid  Zechariah  Mather,  Eleazer  P.  Mather,  Lucius  Mather, 
David  Dumond,  James  Huff,  Jf'illiam  Updike,  and  Daniel  Tuckir, 
do  set  and  impose  severally,  a  fine  of  ten  dollars,  of  good  and 
lawful  money  of  the  state  of  Ntw-York,  to  be  paid  by  them,  and 
every  of  them  severally,  to  the  said  people  of  the  state  of  New- 
York,  for  their  said  offences  :  and  do  cause  them,  and  every  of 
them,  to  be  taken  and  arrested.  And  the  said  Zechariah,  Ele- 
azer, Lucius,  David,  James,  William,  and  Daniel,  being  con- 
victed, and  every  of  them  being  convicted,  upon  my  own  proper 


APPENDIX. 

view  oi  the  tK  resaid,  with  strong   hand   ar- 

by    me.   the   said  justice,  are  committed,  ai>d  every  of  th 
committed,  to  the  common  gaol  of  tiic  said   county  of  Seneca, 
in  the  town  of  Ovid.   b»:i;ig  the  next  gaol  to  the  messuage  afore- 
ihere  to  abide  respectively,   until  they  siull  have  paid  their 
.il   fuies   respectively,  to  the    people   aforesaid,  concerning 
which  the  premises  aforesaid.  I  make  this   my  record.     In  wit- 
ness whereof,  I,  the  said  John  Hood,  esquire,  the  justice  afore- 
to  this  record   my  hand  and  seal   do  set,  at  the   town  ot 
r.iyette  aforesaid,  in  the  county  aforesaid,  on  the  2d  day  of  Au 
it,  iii  the  year  of  our  Lord,  1 309.'' 

AfiUtmua  thereon, 

•  •-a  counts. 

John  Hood,  one  of  the  justices,   kc.,  to  the  keeper  of  the  gaol. 
K.C.      Whereas,   upon  complaint  made  unto  me,  this  present  day. 
y    Elijah   Harlshorne,  of  the  town  of  Fayette.  in   said  county. 
1.  the  said  John  Hood,  esquire,  justice  as  aforesaid,  went  imme- 
diately to    the  messuage,   tenement,  and   possession  of  the   said 
Liijuh.  at  the  town  of  Fayette  aforesaid,  in  the  said  county,  and 
there  found  Zechariah    .Mather,  Eieazer   P.   ^father,  David  Dit- 
iniliam    Updike,  and   Danitl   Tucker,   of  the 
said  town  of  Fayette.  forcibly,  with  strong  hand  and  armed  power. 

::g  the  said  tenement,  messuage,  and  possession,  against  the 
peace  of  the  said  people,  and  against  the  form  of  the  act  in  such 

made  and  provided.  Therefore,  I,  the  said  justice,  do  send 
you,  by  the  bringers  hereof,  the  bodies  of  the  said  Zschariait, 
Klffi~(r,  Lucius.  David,  James,  Jf'illiam,  and  Daniel,  convicted 
of  the  said  forcibly  holding,  by  my  own  view,  testimony  and  re- 
c  IK!,  commanding  you  iu  the  name  of  the  people  of  the  state  ol 
New-York  to  receive  them,  the  said  Zechariah.  Eltazer,  Lucius. 
D:ivid,  Jc  -'/n.  and  Daniel,  into  the  said  gaol  of  our  said 

county,  and  there  safely  to  keep  them  and  eveiy  of  them  respec- 
tively, until  they  shall  have  respectively  p;ud  the  several  sums  of 
ttn  dollars  each,  of  good  and  lawful  money  of  the  state  of  New- 
York,  to  the  said  people,  which  I,  the  said  justice,  have  set  and 
imposed  upon  each  and  every  of  them  separately,  for  a  fine  and 

'in  l"ur  their  said  trespasses  respectively.  Herein  fail  you  not, 
:he  peril  that  may  thereof  ensue."  tec. 


Precept  io  the  shtrijf  to  rtturn  a  jury. 

R.  W.,  esquire,  one  of  the  justices  of  the  people  of  the  state 

\v-Yo ;k,  assigned  to  keep  the  peace  in  the  said  county,  and 

alto  to  hear  and  determine  divers  felonies,  trespasses,  and  other 


APPENDIX.  45] 

misdemeanours  in  the  said  county  committed,  to  the  sheriff  of  the 
said  county,  greeting:  On  behalf  of  the  said  people  of  tin-  stat>- 
of  New- York,  I  command  you,  that  you  cause  to  come  hel'm,; 

me  at ,  in  the  county  aforesaid,  on   the  day   of , 

next  ensuing,  twenty-four  good  and  lawful  men  of  your  county. 
each  of  whom  shall  have,  in  his  own  name  or  right,  or  in  trust 
for  him,  or  in  his  wife's  right,  a  freehold  in  land,  messuages  or 
tenements,  or  of  rents  in  fee  or  for  life,  of  the  value  of  one 
hundred  and  fifty  dollars,  free  from  all  reprises,  debts,  demand:.., 
or  incumbrances  whatsoever,  to  inquire  upon  their  oaths,  for  the 
sai4  people,  of  a  certain  entry  made  with  a  strong  hand  (as  it  i.-^ 
said)  into  the  messuage  of  one  A.  I.,  at aforesaid,  in  tin- 
county  aforesaid,  against  the  form  of  the  statute  in  such  C;IM- 
made  and  provided.  And  you  are  to  return  upon  every  of  ihe 
jurors  by  you  in  this  behalf  to  be  impannelled,  twenty  shillings  of 
issues  at  the  aforesaid  day.  And  have  you  then  there  this  IT, 
cept.  And  this  you  shall  in  no  wise  omit,  upon  the  jn-ril  that 

shall   thereof  ensue.     Witness  the   said    R.  W.,  at ,   in  th» 

county  aforesaid,  the day  of ,  in  the  year . 


The  juror's  uutk. 

You  shall  true  inquiry  and,  presentment  make  of  all  such  thin-- 
as shall  come  before  you  concerning  a  forcible,  entry  (or  </i7uunr  j 
said  to  have  been  lately  committed  in  the  dwelling  hoii:;i:  of 

gentleman,  at ,  in  this  comity;  you  shall  .-pare  no  one  for  fa 

vor  or  affection,  nor  grieve  any  one  for  hatred  or  ill-will,  but  pro- 
reed  herein   according  to  the   best  of  your  knowledge,  and   ar 
cording   to  the    evidence   that  shall    be   -riven    to  you:   so    help 
you  God. 

The  oath  that  A.  F.,  your  foreman,  hath  taken  on  his  par: 
and  every  of  you  shall  truly  observe  and  keep  on  your  pan 
help  you  God. 


The.  inquisition,  indictment,  or  finding  of  the  jury. 

An  inquisition  for  the  people  of  the  state  of  New-York  indent 

ed  and  taken  at ,  in  the  said  county,  the day  of ,  in 

the  year ,  by  the  oaths  of ,  good  and  lawful  men  of  the 

said  county,  before  J.  P.,  esquire,  one  of  the  justices  of  the  said 
people   assigned,  &c.,  who  say,  upon  their  oaths  aforesaid,  that 

A.  I.,  of aforesaid,  gentleman,  long  since  lawfully  and  }• 

ably  was  seised  in  his  demesne,  as  of  fee,  [if  it  is  not  fretkold,  tin  n 
say,  possessed]  of,  and  in  one  messuage,  with  the  appurt.-u. 


452  APPENDIX. 

in aforesaid,  in  the  county  aforesaid,  and  his  said  possession 

[and  seisin]  so  continued  until  A.  O.,  late  of ,  farmer,  B.  O., 

late  of  the  same,  labourer,  and  C.  O.,  late  of  the  same  place,  black- 
smith, and  other  malefactors,  unknown,  the day  of ,  now 

last  past,  with  strong  hand  and  armed  power,  into  the  messuage 
aforesaid,  with  the  appurtenances  aforesaid,  did  enter,  and  him 
the  «aid  A.  I.  thereof,  disseised,  and  with  strong  hand  expelled; 
and  him,  the  said  A,  I.,  so  disseised  and  expelled  from  the  said 

messuage,  with  the  appurtenances  aforesaid,  from  the  said 

day  of  ,  until  the  day  of  the  taking  of  this  inquisition,  with 

like  strong  hand  and  armed  power,  did  keep  out,  and  do  yet  keep 

out,  to  the  great  disturbance  of  the  peace  of  the  said  people,  and 

against  the  form  of  the  statute  in  such  case  made  and  provided. 

We,  whose  names  are  hereunto  set,  being  the  jurors  above 

said,  do.  upon  the  evidence  now  produced  before  us,  find 

the  inquisition  aforesaid  true. 

A.  B, 

C.   D.,  kr. 


Precept  to  the  sherijf  to  summon  apctitjui-y  to  try  the  traverse. 


,  ss. 

R.  TV.,  kc.  to.  kc.  I  command  you  that  you  cause  to  come 
before  me,  at,  kc.,  on.  kc.,  twelve,  kc.,  (as  in  tfie  former  precept) 
by  whom  the  truth  of  the  matter  may  be  the  better  known,  to 
make  a  certain  jury  of  the  county,  upon  their  oath  to  try  a  cer- 
tain traverse  of  an  indictment  found  for  the  said  people  of  the 
said  state,  and  now  pending  before  me,  the  said  justice,  against 
A.  O..  of  ,  farmer,  B.  O.,  kc.,  for  a  certain  entry  [and  de- 
tainer] made  with  a  strong  hand  into  the  messuage  of  one  A.  I., 

in  the  town  of ,  in  the  county  aforesaid,  against  the  form  of 

the  statute  in  such  case  made  and  provided,  and  who  are  in  no 
wise  of  kin  to  the  said  A.  O.,  B.  O.,  kc.  nor  to  either  of  them. 
And  you  are  to  return,  kc.,  [as  in  the  precept  to  fUT.;moft  the  grand 
jury  to  tkt  end.~\ 


Juror's  oath. 

You  do  swear  that  you  will  well  and  truly  try  the  issue  of  tra- 
verse joined  between  the  people  of  the  state  of  New-York  and , 

the  defendants,  and  a  true  verdict  give,  according  to  evidence: 
so  help  you  God. 


APPENDIX,  453 

Warrant  to  the  sheriff  fur  restitution. 


M.  D.,  esquire,  one  of  the  justices  of  thu  people.  of  the  state  oj 
New-York,  assigned,  kc.  :  To  the  sheriff  of  the  said  county, 
greeting:  Whereas,  by  an  inquisition  taken  before  me,  the  jus- 
tice aforesaid,  at  -  ,  in  the  county  aforesaid,  on  this  preseni 
-  day  of  -  ,  in  the  year  --  ,  upon  the  oaths  of  ---  ,  and  by 
virtue  of  the  statute  made  and  provided  in  cases  of  forcible  en- 
try and  detainer,  it  is  found  that  A.  O.,  late  of  --  r-,  farmer,  and 
B.  O.,  late  of  -  ,  labourer,  on  the  -  day  of  --  ,  now  last 
past,  into  a  certain  messuage  with  the  appurtenances  of  A.  J.. 
of  --  aforesaid,  in  the  county  aforesaid,  gentleman,  situate,  ly- 
ing, and  being  at  -  aforesaid,  in  the  county  aforesaid,  with 
force  and  arms  did  enter,  and  him,  the  said  A.  J.  thereof,  then 
with  strong  hand  did  disseise  and  drive  out,  and  him,  the  said 
A.  J.,  thus  driven  out  from  the  aforesaid  messuage,  with  the  ap 
purtenances,  from  the  --  day  of  --  aforesaid,  to  this  present 
day  of  the  taking  of  the  said  inquisition,  with  strong  hand  and 
armed  force  did  keep  out,  and  do  yet  keep  out,  as  by  the  inqui- 
sition aforesaid,  more  fully  appears  of  record  :  Therefore,  on  the- 
behalf  of  the  said  people  of  the  state  of  New-  York,  I  charge  and 
command  you,  that,  taking  with  you  the  power  of  the  county,  (if 
it  be  needful,)  you  go  to  the  said  messuage  and  other  the  premises, 
and  the  same,  with  the  appurtenances,  you  cause  to  be  reseis- 
ed,  and  that  you  cause  the  said  A.  J.  to  he  restored,  and  put 
inta  his  full  possession  thereof,  according  as  he,  before  the  entry 
aforesaid,  was  seised,  according  to  the  form  of  the  said  statute. 
And  this  you  shall  in  no  wise  omit,  on  the  penalty  thereon  incum- 
bent. Given  under  my  hand  and  seal,  at  -  ,  in  the  said  county, 
the  -  day  of  -  ,  in  the  year  --  . 


POOR. 

Warrant  of  two  justices  for  the  examination  of  a  pauper,  concerning 
his  settlement. 


as. 


To  any  constable,  &tc. 

Forasmuch  as  information  hath  been  given  to  us, ,  two  of  the 

justices  of  the  peace,  in  and  for  the  said  county,  by  the  overseers 

of  the  poor  of  the  town  of ,  in  the  said  county,  that  A.  P. 

hath  come  to  inhabit  in  the  said  town,  not  having  gained  any  le- 
gal settlement  therein,  nor  produced  any  certificate  owning  him  to 
be  settled  elsewhere,  and  that  he,  the  said  A.  P..  is  likely  to  he- 
come  chargeable  to  the  said  town  of :  These  are,  therefore. 


454  APPENDIX. 

to  require  you  to  bring  the  said  A.  P.  before  us,  at  the  house  ol 

,  it) ,  in  the  said  county,  on ,  the day  of , 

in  the  afternoon  of  the  same  day,  to  be  examined  concerning  the 
place  of  his  last  legal  settlement,  and  to  be  further  dealt  with  ac- 
cording to  law.  Given  under  our  hands  and  seals,  the tiny 

of . 


The  form  of  a  general  order  uf  removal. 

__ ,  ss.      To,  fyc. 

Upon  the  information  of  the  overseers  of  the  poor  of  the  town 

of aforesaid,   in   the  said   county   of ,  unto   us,  Avhose 

names  are  hereunto  ser,  and  seals  affixed,  being  two  of  the  justices 

of  'ha  peace  in  anu  for  the  said  county  of ,  that  J.  T.,  and 

M.,  his  wife,  T.,  truvr  jon,  aged  eight  years,  and  A.,  their  daugh- 
ter, aged  four  y-.'vrs,  have  come  to  inhabit  in  the  said  town  of 

,  net  having   paint.'!  •>  '•''r-.i\  settlement  there,  nor   produced 

any  certific  ue  /••- :ii-,g  th< ;u,  or  any  of  them,  to  be  settled  else- 
where, and  that  tho  •$:>•.;(  J.  T.,  M..  his  >vife,  and  T.  and  A.,  their 
children,  are  likely  to  become  chargeable  to  tiie  said  town  of 

:   T»7-;,  the  .-:ik'  ;as:i'U's,  upon  due  proof  made  thereof,  as  well 

upon  rhe  ex? rain.' lion  of  r.he  said  J.  T.,  upon  oath,  as  otherwise/ 
and  likewise  upon  diie  consideration  had  of  the  premises,  do  ad- 
jud^e  the  san.e  to  be  true,  and  we  do  likewise  adjudge  that  the 
lawful  settlement  of  them,  the  said  J.  T.,  and  M.,  his  wife,  and  T. 

and  A.,  their  children,  is  in  the  town  of ,  in  the  said  county 

of .     And  the  said  J.  T.,  M.,  his  w  ife,  and  T.  and  A.,  their 

children,  having  been  ordered  and  directed  by  us,  the  said  jus- 
tices, by  the day  of ,  last  past,  to  remove  to  the  place 

of  their  former  settlement,  and  they  having  neglected  [or  refused] 
to  comply  with  the  said  order ;  we  do  therefore  command  you 
to  convey  the  said  J.  T.,  M.,  his  wife,  and  T.  and  A.,  their  chil- 
dren, from  and  out  of  the  said  town  of ,  to  the  said  town  of 

,  and  them  to  deliver  to  the  overseers  of  the  poor  there,  or 

to  some  one  of  them,  together  with  this,  our  order,  or  a  true  copy 
thereof,  at  the  same  time  showing  to  them  the  original  ;  and  we 
do  also  hereby  require  the  said  overseers  of  the  poor  of  the  said 

town  of to  receive  and  provide  for  them,  as  inhabitants  of 

the  said  town.      Given  under  our  hands  and  seals,  the day 

of ,  in  the  year  of  our  Lord . 


Certificate. 

We,  the  overseers  of  the  town  of ,  in  the  county  of , 

do  hereby  certify,  own  and  acknowledge,  that  A.  L.,  labourer. 


APPENDIX.  455 

is  an  inhabitant  legally  settled  in  the  town  of aforesaid.     In 

witness  whereof  we  have  hereunto  set  our  hands  and   seals,  the 

day  of ,  in  the  year . 

Attested  by  A.   B 

A.  W.  C.  I). 

B.  W. 

I,  J.  P.,  esquire,  one  of  the  justices  of  the  peace  in  and  for 
the  said  county  of ,  do  approve  of  the  above  written  certifi- 
cate :  And  I  do  also  certify,  that  A.  B.  and  C.  I).,  the  overseers  of 

the  poor  of  the  said  town  of ,  whose  names  arid  seuls  are  to 

the  said  certificate  subscribed  and  set,  have  this  day  acknow- 
ledged before  me,  the  said  justice,  that  they  did  severally  sign  and 
seal  the  same,  in  the  presence  of  A.  W.  and  B.  W.,  th«  witr.i 

attesting  such  certificate.     Given  under  rny  hand  this day 

of . 

Where  the  certificate  has  been  proved  by  the  attesting  witnesses,  ilr 
folloiving  may  be  the  form  of  the  acknowledgment. 

I,  J.  P.,  esquire,  one  of  the  justices  of  the  peace  in  and  for  the 

aaid  county  of ,  do  approve  of  the  above  written  certificate. 

And  I  do  also  certify,  that  A.  W.,  one  of  the  witnesses  who  at- 
tested the  same,  hath  this  day  made  oath  before  me,  the  said 
justice,  that  he,  the  said  A.  W.,  did  see  the  overseers  of  the  poor 

of  the  town  of aforesaid,  whose  names  and  seal*  are  there* 

unto  subscribed  and  set,  severally  sign  and  seal  the  same;  and 
that  the  names  of  A.  W.  and  B.  W.,  who  are  the  witnesses  at- 
testing the  said  certificate,  are  respectively  of  their  own  proper 
hand-writing.  (Jiven  under  my  hand  this  — —  day  of . 


Order  iodize  tht,  goods  and  receive  the  rents  of  parents  or  husbands 
having  run  away. 


To  the  overseers  of  the  poor  of  the  town  of ,  in  the  said 

onunty.  Whereas  it  appears  unto  us,  whose  names  are  hereunto 
set  and  affixed,  two  of  the  justices  of  the  peace  for  the  said  coun- 
ty, as  well  upon  the  complaint  and  application  of  the  overseers  of 

the  poor  of  the  town  of aforesaid,  in  the  county  aforesaid, 

as  upon  due  proof  upon  oath  before  us  made,  that  A.  O.,  late   of 

the  town  of aforesaid,  in  the  county  aforesaid,  labourer,  hatli 

run  away  from ,  his  wife  and ,  his  children,  leaving  them 

a  charge   to  the    said    town    of ,  and  that  the  said  A.  O. 

hath  some  estate  whereby  to  ease  the  said  town  of  their  said 
charge  in  whole  or  in  part:  We  do  hereby  authorize  and  com- 
mand you,  the  said  overseers  of  the  poor  of aforesaid,  to 

take  and  sei/e  the  goods  and  chattels,  and  to  let  out  and  r. 


APPENDIX. 

the  annual  rents  and  profits  of  the  lands  and  tenements  of  the 
said  A.  O.,  within  the  said  county,  for  and  towards  the  maintain- 
ing, bringing  up,  and  providing  for  his  said  wife  and  children  so 
feft  as  aforesaid:  And  with  this  warrant  you  are  to  appear  at  the 
next  general  sessions  of  the  peace  to  be  holden  for  the  said  coun- 
ty, and  certify  then  and  there  what  you  shall  have  done  in  the 
execution  hereof.  Given  under  our  hands  and  seals,  at  — — ,  in 
the  said  county,  the day  of ,  in  the  year . 


RECOGNISANCE. 

Form  of  a  recognisance. 


Be  it  remembered,  that  on  the day  of  ,  in  the  - — 

year  of  our  Lord, ,  A.  O.,  of ,  in  the  county  aforesaid, 

farmer,  and  A.  S.,  of  ,   in  the  county  aforesaid,  tailor,    and 

B.  S.j  of ,  in  the  county  aforesaid,  labourer,  personally  came 

before  me,  J.  P.,  esquire,  one  of  the  justices  of  the  people  of 
the  state  of  New-York,  assigned  to  keep  the  peace  in  the  said 
county,  and  acknowledged  themselves  to  owe  to  the  said  people  ; 
that  is  to  say,  the  said  A.  O.,  the  sum  of  one  hundred  dollars,  and 
the  said  A.  S.  and  B.  S.,  each  the  sum  of  fifty  dollars,  separately, 
and  of  good  and  lawful  money  of  the  state  of  New-York,  to  be 
made  and  levied  of  their  goods  and  chattels,  lands  and  tenements 
respectively,  to  the  use  of  the  said  people,  if  the  said  A.  O.  shall 
make  default  in  the  condition  hereon  indorsed,  [or  hereunder 
itmitcn.] 

Acknowledged  before  me, 
J.  P. 

The  condition  of  the  above  written  [or  within  written]   recog- 
nisance is  such,  that  if  the  above  bounden  A.  O.  shall ,  then 

the  said  recognisance  to  be  void,  or  else  to  remain  in  full  force 
and  virtue. 

Condition  of  a  recognisance  to  prefer  a  bill  of  indictment. 

The  condition  of  this  recognisance  is  such,   that  if  the  abov* 
bounden  A.  I.  shall  personally  appear  at  the  next  general  sessions 

of  the  peace,  to  be  holden  at ,  in  and  for  the  said  county,  and 

then  and  there  prefer  a  bill  of  indictment  against  A.  O.,  late  of 

,  labourer,   for   the   felonious  taking  and   carrying   away    of 

,  the  property  of  ,  and  shall  then  and  there  give  evi- 
dence, concerning  the  same,  to  the  jurors  who  shall  inquire  there- 
of on  the  part  of  the  said  peopl«  :  And  in  case  the  same  be 
found  a  true  bill,  then  if  the  said  A.  I.  shall  personally  appear  be- 
fore the  jurors,  who  shall  pass  upon  the  trial  of  the  said  A.  O., 


APPENDIX.  457 

and  give  evidence  upon  the  said  indictment,  and  not  depart  with- 
out leave  of  the  court,  then  this  recognisance  to  be  void. 

Condition  of  a  recognisance  to  answer  to  an  indictment. 

The  condition  of  this  recognisance  is  such,  that  if  the  above 
bounden  A  O.,  shall  personally  appear  at  the  next  general  <e><ioi!> 

of  the  peace  to  be  holden  at ,  in  and  for  tin-  s;iid  county,  then 

and  there  to  answer  to  an  indictment  to  be  preferred  against  him 

by  A.  I.,  of ,  labourer,  for  assaulting  and  beating  him  the  said 

A.  I.,  and  not  depart  without  leave  of  the  court,  then  this  r 
nisance  to  be  void. 

Condition  of  a  recognisance  to  appear  and  give  evidence. 

The  condition  of  this  recognisance  is  such,  that  if  the  above 
bounden  A.  W.  shall  personally  appear  at  the  next  general  ses- 
sions of  the  peace  to  be  holden  at ,  in  and  for  the  said  coun- 
ty, and  then  and  there  give  such  evidence  as  he  knoweth,  upon  a 

bill  of  indictment  to  be  preferred  by  A.  I.,  of ,  labourer,  to  the 

grand  jury,  against  A.  O.,  late  of  — . — ,  in  the  said  county,  yeoman. 

for  the  feloniously  taking  and  carrying  away ,  the    property 

of ,   and  in  case  the  said  bill  be  found  a  true  bill,  then  if  the. 

said  A.  W.  shall  then  and  there  give  evidence  to  the  jurors  that 
shall  pass  on  the  trial  of  the  said  A.  O.  upon  the  said  bill  of  in- 
dictment, and  not  depart  thence  without  leave  of  the  court,  then 
this  recognisance  to  be  void,  otherwise  to  remain  in  full  foive 
and  effect. 


SEARCH  WARRANT. 

To  any  constable  of  the  town  of ,  in  the  said  county. 

Whereas  it  appears  to  me,  J.  P.,  esquire,  one  of  the  justio 
the  people  of  the  state  of  New-York,  assigned  to  keep  the  peace 

in  the  said  county,  by  the  information,  on  oath,  of  A.  I.,  of . 

in  the   county   aforesaid,  labourer,  that  the  following  good?,  lu 

wit, ,  have,  within days  last  past,  by  some  person  or 

persons   unknown,    been   feloniously    taken,    stolen   and   carried 

away,  out  of  the  house   of  the    said    A.  I.,  at aforesaid,  in 

the  county  aforesaid  ;  and  that  the  said  A.  I.  hath  probable  cause 
to  suspect,  and  doth  suspect  that  the  said  goods,  or  part  th- 
are  concealed   in  the  dwelling-house  of  A.  O.,  of  -  — ,  in   th« 
said  county,  yeoman  ;  these  are,  therefore,  in  the  namr  of  the 


APPENDIX. 

said  people  ot'  the  state  of  New-York,  to  authorize  and  require 
you,  with  necessary  and  proper  assistants,  to  enter,  in  the  day 
time,  into  the  said  dwelling-house  of  the  said  A.  O.,  at afore- 
said, in  the  county  aforesaid,  and  there  diligently  to  search  for 
the  said  goods  ;  and  if  the  same,  or  any  part  thereof,  shall  be 
found  upon  such  search,  that  you  bring  the  goods  so  found,  and 
also  the  body  of  the  said  A.  O.  before  me,  or  some  other  of  the 
justices  of  the  said  people  assigned  to  keep  the  peace  in  the 
county  aforesaid,  to  be  disposed  of  and  dealt  with  according  te 
'aw.  Given  under  my  hand  and  seal  at,  &.c. 


SURETY  FOR  THE  PEACE  OR  GOOD  BEHAVIOUR, 

Warrant  for  the  peace  or  good  behaviour. 

— ,  ss.   To,  fyc. 

Whereas  A.  I.,  of ,  in  the  said  county,  labourer,  hath  per- 
sonally come  before  me,  and  hath  made  oath,   that  he,    the  said 

A.  I.,  is  afraid  that  A.  O.,  of ,  in  the  said  county,  labourer,  will 

beat  him,  (wound,  maim,  kill,  or  do  him  some  bodily  hurt,)  and 
hath  therefore  prayed  surety  of  the  peace  against  him,  the  said 

A.  O.,  [or  if  for  the  good  behaviour,  that  A.  O.,  of ,  in  the  said 

county,  labourer,  hath  threatened  to  do  some  bodily  hurt  to  him,  the 
said  d.  /.,  or  to  burn  the  house  of  him,  the  said  A.  I.,  and  hath  there- 
fore prayed  surety  for  the  good  behaviour  against  him  the  said  A.  O.\ 
These  are,  therefore,  on  the  behalf,  and  in  the  name  of  the 
people  of  the  state  of  New-York,  to  command  you,  that  imme- 
diately upon  the  receipt  hereof  you  bring  the  said  A.  O.  before 
me,  to  find  surety,  as  well  for  his  personal  appearance  at  the 

next  general  sessions   of  the  peace  to  be  holden  at  ,  in  and 

for  the  said  county,  as  also  for  his  keeping  the  peace  [or,jfor  his 
being  of  the  good  behaviour]  in  the  mean  time  towards  the  good 
people  of  this  state,  and  chieily  towards  the  said  A.  I.  Given,  fee. 

Condition  of  a  recognisance  for  the  peace  or  good  behaviour. 

The  condition  of  this  recognisance  is  such,  (hat  if  the  abotfe 
hnunden  A.  O.  shall  personally  appear  at  the  next  general  sessions 
uf  the  peace  to  be  holden  in  and  for  the  county  aforesaid,  to  do 
and  receive  what  shall  then  and  there  be  enjoined  him  by  the 
••onrt,  and  in  the  mean  time  shall  keep  the.  peace  [or  be  of  the 
good  behaviour  ;  or  shall  keep  the  peace  and  be  of  the  good  behaviour] 
towards  the  good  people  of  this  state,  and  especially  towards 
A.  I.,  of—  — ,  in  the  said  county,  labourer,  then  the  said  recog- 
nll  be  void,  or  else  to  remain  in  full  force  and  effect. 


APPENDIX. 

Mittimus  for  want  of  sureties. 

,  M. 

To  any  constable  of  the  town  of ,  in  the  said  county,  and 

to  the  keeper  of  the  gaol  at ,  in  the  said  county  : 

Whereas  A.  O.,  of ,  in  the  said  county,  labourer,  is  now 

brought  before  me,  J.  S.,  esquire,  one  of  the  justices  of  the  pence 
in  and  for  the  said  county,  requiring  him  to  find  sufficient  .sun. 
to  be  bound  with  him  in  a  recognisance  for  his  personal  appear- 
ance at  the  next  general  sessions  of  the  peace  to  be  holden  in  and 
for  the  said  county,  and  in  the  mean  time  to  keep  the  peace  [o< 
be  of  the  good  behaviour]  towards  the  good  people  of  this  state,  and 

especially  towards  A.  I.,  of ,  in  the  said  county,  labourer  ;  and 

whereas  he,  the  said  A.  O.  hath  refused  and  doth  now  refuse, 
before  me,  to  find  such  sureties:  These  are  therefore,  in  the 
name  of  the  people  of  the  state  of  New-York,  to  command  you, 
the  said  constable,  forthwith  to  convey  the  said  A.  O.  to  the  com- 
mon gaol  at ,  in  the  said  county,  and  to  deliver  him  to  the 

keeper  thereof,  there,  together  with  this  precept:    And  I  do,  in 
the  name  of  the  said  people,  hereby   command  you,  the   said 
keeper,  to   receive  the  said   A.  O.  into   your  custody  in  the  said 
gaol,  and  him  there   safely  to  keep  until  he  shall  find  such  sun 
ties  as  aforesaid.     Given,  fee. 


Oath  of  the  person  demanding  the  surety. 

You  do  swear  that  you  are  in  fear  of  your  life,  'or  some  bodil} 

hurt  to  be  done,  or  procured  to  be  done  you  by  A.  O.,  of , 

for  that  the  said  A.  O.  hath  threatened  to  wound,  maim,  kill,  &c. 
[as  the  case  may  be.]  and  that  you  do  not  require  the  surety  of 
the  peace  [or  of  the  good  behaviour]  from  him  for  any  private  ma- 
lice, vexation,  or  revenge,  but  for  the  necessary  safety  of  youi 
person. 


WARRANT. 

Warrant  to  apprehend  affrayers. 


To  any  constable  of  the  town  of ,  in  the  said  county. 

Whereas  A.  I.,  of ,  in  the  said  county,  hath  this  day  madt 

oath  before  me,  J.  P.,  esquire,  one  of  the  justices  of  the  peace  in 

and  for  the  said  county,  that  on  the day  of ,  in  the  yrai 

,  A.  O.,  of ,  labourer,  and  B.  O.,  of ,  labourer,  at 

}  in  the  said  county,  in  a  tumultuous  manner  made  an  affray 


i6U  APPENDIX. 

wherein  the  person  of  the  said  A.  I.  was  beaten  and  abused  by 
them,  the  said  A.  O.  and  B.  O.,  without  any  lawful  or  sufficient 
provocation  given  to  them,  or  to  either  of  them,  by  him,  the  said 
A.  1. :  These  are  therefore  to  command  you  forthwith  to  appre- 
hend the  said  A.  O.  and  B.  O.,  and  bring  them  before  me,  or  some 
Other  of  the  justices  of  the  peace  for  the  said  county,  to  answer 
the  premises,  and  to  find  sureties,  as  well  for  their  personal  ap- 
pearance at  the  next  general  sessions  of  the  peace  to  be  holden 
for  the  said  county,  then  and  there  t&  answer  to  an  indictment  to 
be  preferred  against  them  by  the  said  A.  I.,  for  the  said  offence, 
as  also  for  their  keeping  the  peace  in  the  mean  time  towards  the 
good  people  of  the  state  of  New-York,  and  especially  towards 
him,  the  said  A.  I.  Hereof  fail  not,  as  you  will  answer  the  con- 
trary at  yotir  peril.  Given  under  my  hand  and  seal,  at ,  in 

the  said  county,  the day  of ,  in  the  year . 


Warrant  for  an  assault. 

— ,  ss.    To,  fa. 

Whereas  complaint  hath  been  made  before  me,  J.  P.,  esquire, 
one,  fcc.  upon  the  oath  of  A.  I.,  of ,  in  the  said  county,  tai- 
lor, that  A.  O.,  of aforesaid,  butcher,  did,  on  the day 

of ,  violently   assault  and   beat   him,  the   said  A.  I.,  at 

aforesaid,  in  the  county  aforesaid :  These  are  therefore,  in  the 
name  of  the  people  of  the  state  of  New-York,  to  command  you 
forthwith  to  apprehend  the  said  A.  O.,  and  to  bring  him  before 
me,  to  answer  unto  the  said  complaint,  and  to  be  further  dealt 
with  according  to  law.  Given,  fee. 


Warrant  to  apprehend  a  burglar. 

Forasmuch  as  A.  I.,  of,  8tc.  hath  this  day  made  information  and 
complaint  before  me,  J.  P.,  esquire,  one,  8tc.,  that  yesterday,  in 
the  night,  the  dwelling-house  of  him,  the  said  A.  I.,  at afore- 
said, in  the  county  aforesaid,  was  feloniously  and  burglariously 
broken  open,  and  one  silver  tankard,  of  the  value  of  twenty  dol- 
lars, of  the  goods  and  chattels  of  him,  the  said  A.  I.,  feloniously 
and  burglariously  stolen,  taken,  and  carried  away  from  thence ; 
nnd  that  he  hath  just  cause  to  suspect,  and  doth  suspect,  that 
A.  O.,  late  of ,  in  the  county  of ,.labourer,  the  said  felo- 
ny and  burglary  did  commit :  These  are  therefore,  in  the  name 
of  the  people  of  the  state  of  New- York,  to  command  you,  that 
immediately  upon  sight  hereof,  you  do  apprehend  the  said  A.  O., 
nnd  bring  him  before  me  to  answer  the  premises,  and  to  be  fur- 
ther dealt  with  according  to  law.  Herein  fail  you  not. 


APPENDIX. 

Information  against  a  person  for  felony. 

The  information  and  complaint  of  A.  I.,  of ,  in  the  coun- 
ty of  ,  labourer,   made  on  oath  before  me,  J.  P.,   <-s<|uir<-. 

one  of  the  justices  of  the  peace  for  the  said  county,  the day 

of ,  in  the  year ,  that  yesterday  in  the  night,  or  early  in 

the  morning  of  this  day,  divers  goods  of  him,  the  said  A.  I.,  to 

wit, ,  have  feloniously  been  stolen,  taken,  and  carried  away 

from  the  house  of  him,  the  said  A.  I.,  at aforesaid,  in  the 

county  aforesaid,  and  that  he  hath  just  cause  to  suspect,  and  doth 

suspect,  that  A.  O.,  late  of ,  labourer,  feloniously  did  steal. 

take,  and  carry  away  the  same  :  And  thereupon  he,  the  said  A.  i.. 
prayeth  that  justice  may  be  done  in  the  premises. 

A.  I. 

Before  me, 
J.  P. 


Warrant  thereon. 

[Commtncement  as  in  the  foregoing  precedents]  Jhat  this 

present  day  divers  goods  of  him,  the  said  A.  I.,  to  wit:  , 

have  feloniously  been  stolen,  taken,  and  carried  away  from  the 
house  of  him,  the  said  A.  I.,  at aforesaid,  in  the  county  afore- 
said, and  that  he  hath  just  cause  to  suspect,  and  doth  suspect, 

that  A.  O.,  late  of ,  labourer,  feloniously  did  steal,  take,  and 

carry  away  the  same.  [Conclusion  as  above.] 

It  appears  from  the  precedents,  that  the  proper  course  is,  for 
the  information,  upon  which  a  warrant  is  granted,  to  be  reduced 
to  writing  and  subscribed  by  the  party  making  the  application. 


INDEX. 


AB\T«MBWT  of  a  nuisance,   145.    Animals,  noxious,  409  410. 

Appeal,  11. 

by  civil  deaih,  1C.3.        from  an  order  of  removal. 

p.ca  .11.  19     23'*,   -89.        ;-;47.  .  4 

mu;  t  be  veri-    '  from  commissioner?  of  hiirh- 

fi«d    239.  ways.  U1. 

judgment  on,    on  a  convection,  oJ. 

of  felony 

Ab  ent  and  ab.^cond.ng  debtors,  277,    Appearance,  cure?,  want  of,  or  de- 

fectivp  s  in    (i/i 

Accessory,  1—5.  c:Tes  misnomer  190. 

in  i.myhem,  38. by  infant  plaintiff  or  de- 

Acknowledgujeni   of  a  debt,    299,        fendant    i97. 

•**0-  Appo'nt    ent  of  town    officer?    by 

Acknowledging   a    fine,    recove-y,        three  justice  .77.  79.  4;.,  4 •>.>.' 
deed,  recognisance,  baii,  or judg-    Apprentices.  13. 
ment,  in  the  ua:i>e  of  another  per- proceedings  when    re- 
son,  42.                                                        n:oveal>le.       .  65. 

Acquittal,  former,  191.  • when  d'sorderly  person* 

Ac' ions  qai  tarn,  5.  may  be  bocnd  out,  90. 

• limitation  of,  301. stealing  master's  good*, 

Act  on  on  the  case  for  enticing  away 

an  apprentice     4.  Apprenticeship,  settlement  by,  331, 

for  a  nuisance,  516.        332. 

318.  Arms,    ammunition,    and   arcoutre- 

for  a  conspiracy.  76.        rnentr  exempted  from  distress,  ex- 

for  exec.iting  pro-        ecution  &c.  312. 


cess  oppressively,  80.  Arraignment,  24. 

•  against  an  innkeep-    Arre.-t.  .  .'">. 


er,  19i5.  for  a  breach  of  the  peace,  8. 

for  enticing  away  a        10. 


wife.  230.  by   con.-table  without  war- 

general    issue    in,        rant,  78,  79. 


2.c-9.  killing  in  attempting  to,  169. 

Act-on  against  a  con-'table.  80.  by  verbal  order  of  justice 

———by  and  against  hu-band  and        416. 

wife,  17 1,  i7->;'l73.  Ar^on,  33—35. 

against  a  justice,  225.  419.  A-hes   vide  Pot  and  Pearl  Ashei. 

•  limitation  of,  i:97.  As.  ark  and  battery,  35 — 39. 

Adjournment,  241. •  no    accesiorv 

Advocate  in  a  justice's  court.  234.  in,  1. 

Affidavit,  7.     '  action  for,  230. 

Affi,  nation,  320.  warrant  for  41 T 

Ah'ray,  8.  S.'..  As.-ombly.  privilege  of,  357.  358. 
and    riot,    d;stinction    be-  Asse-smcnt    ami   commutation    fer 

tween.  .r;66.  work  on  higliwoy,  13ti. 

Allegiance,  oath  of,  31:'.  Asse  sort,  401.  406. 

Ambassador  and  hi?  servants  privi-  As>u::.ps!t,  genernl  is-ue  in,  S59. 

leired  froc  arrest,  359,  360.  Attachment  for  costs,  65. 

Amendments  and  jpnfsils.  1«9.  VJ3. to  make  a  r«t«rn.  67. 


164 


INDEX. 


Attachment  against  absent  and  ab- 
sconding debtor-,  276,  .11. 

Attainder  former,  191. 

Attorneys  -9. 

not  to  be  summoned  on 

juries.  214. 

purchasing  bond,  &c.  to 


sue  on,  310. 

privilege  of,  359. 

Aulerfoils  acifiiit,  19!.  194. 
Auttrfoits  conrict.  .91. 
Auterfoils  attaint,  191. 

B. 

BAIL,  39. 

where  a  dangerous  wound  has 

been  p;ven 

where  the  coaimitTtent  was  ir- 
regular 74. 

letting  to  when  an  escape.  97. 

when  a  single   juhtice  cannot 

take,       '.. 

Bank  notes,  42.  122,  1:23. 

Ban  etry.  310. 

Bbstard  4*?. 

's  putative  grandfather  not 

bo.md  to  -upport  him,  b2<5. 

settlement  of,  331. 

Battery,  35. 

Beggar-,  f  9. 

Benefit  of  clergy,  abolished,  103. 

Be!  ting,  127.  128. 

Bigamy  an  improper  term,  324. 

Bill  of  exceptions,  13. 

Birth,  settlement  by,  329,  330. 

Blasphemy,  175,  176. 

Boundaries  of  towns,  414. 

Breach  of  the  peace,  26. 36. 121. 174. 
Et  vide  Affray.     Surety  of  the 
Peace. 

puni.  liable  in  spe- 
cial sessions,  377. 

arre't  for.  416. 


Cattle,  may  be  prevented  from  going 

at  la.-ge   4  8. 

Certificate  of  a  justice,  J.76. 
of  overseers  of  the  poor, 

345.  346. 
Cer.iorari.  61. 
— to  a  justice's  court,  67.  n. 

£73. 
to  remove  proceeding!  for 

forcible  entry.  1     . 
to    remove    proceedings 

under  the  act   relative  to   h  gh- 

way-    "  4   . 
when  a  supersede;* 

•-•7  .. 
Challenge  to  fight,  95.  96. 

to  a>>ry,  t!3.  263. 

Champerty,  2  9. 

Chancellor  jr.ri  dict'on  as  to  idiot? 

and  lunatics   •  •  7. 
Cha  ge~  town,  414,  415. 
Cheat,  68. 
Civil  remedy  not  merged  in  felony. 

10-     iOS.       ' 

death.  173,  174.  183. 

Clerk   ride  Apprentices. 

Coin,  70. 

Collector,  action  against,  2£7. 

appointment  of.  401. 

bond  to  be  giren  by.  405. 

refusing  to  serve   4  6. 

topay  :ioney  received  415. 

Commissioners  .of    highway,    ride 

Highway.-. 
appoint- 

meni  of  401. 

of  turnpikes.  161,162. 

of  excise,  :9f*. 

ex  officio,  to  take  oaths 


Breaking  open  doors,  9.  29,  SO.  32. 
114.  370,  571. 

into  a  dwelling  house,  291, 

29-2. 

Bribery,  55. 

Bridges,  153. 

Burglary,  56. 

constable  must  pursue  bur- 
glar, 79. 

indictment  for,  188. 

Burning  a  dwelling  house,  33, 34, 35. 

C. 

CARRIAGES  meeting,  153. 


of  office  .-19. 
Commitment,  71. 
for  refusing  to  answer 

re  peeling  a  debtor's  estate,  '6. 

of  witness  refu-ing  to 


be  bound,  1>  1. 

by    justice    for  a  con- 


tempt, 39",  399. 
Common  land-  of  towns,  408. 
Confession.  ';.">.  101. 

judgment  by, 266. 

Congress,  privilege  of,  S57. 
Conspiracy,  76. 

Conservators  of  the  peace,  222. 
Constable,  77.  4"1. 

duty  in   suppressing  af- 
frays, 9, 10. 

'•  a    conservator    of    the 

peace,  223. 

action  against,  227. 


INDEX. 


Constable,  oath   to  Itcep  the  jury,    Disorderly  persons,  89—91. 

259.  Dixr.-t-',- 


bond  to  be  given  by,  405.  Distress,  91  . 

-  refusing  to  serve,  U)6.  -  -  to  levy  charges  of  convey*- 

-  proper  olliver  to  execute        ing  party  t.. 
warrant,  417,  II::.  Dividing  towns,  41.'), 

Constitution  of  the  United  States,  Divorce,  173. 

oatli  to  support,  820.  Dogs.  '.M. 

Consul,  not  privileged  from  arrest,  Drunkenness  no  excuse  for  the  rdiM 

360.  mi  sion  of  a  crime,  .307 

Conviction;  ill.  Duel,  ('•. 

-  no  intendment  in  favour  -  killing  in,  1C>  i.  lliH. 

of,  K'.  n.  !'l.  Dr.eiling,  95,  96. 

-  of  a  forcible  entry  ami 

detainer,  114.  i;. 

con.-trucd  strictly,  liG. 


**  -  itmlc:  thfnr,l  to  prevent  ^  EI,ECTI  ox,  in.'pcctors  of,  constable 
immorality.  180.  '.;57.  required  to  obey,  79. 

-  privilege  from  arrest  dor- 

ing.  359. 
Elisors,  213. 
Coroners.  84,  1'5.  Elopement  of  wife,  17-.'. 


fonder,  191. 

is  matter  of  record,  223. 

in  -rwv'.il  'e.'-sions,  378. 


venire,  when  directed  to,    Emancipation,  3.S'),  331. 

Embracery,  222.  310. 
a  conservator  of  the  peace,    Escape,  96. 

retaking,  and  voluntary  si. 


••  action  against,  227. 

Corporation,  action  by  and  against, 

231. 
Costs  in  a  popular  action,  6. 

on  an  appeal,  12.  22. 

on  certiorari.  65.  67.  274. 

in  a  justice's  court,  279,  230. 

Courts  of  the  United  States,  22:'. 
Courtniartial,  313,  31  i. 
Covenant,  plea  in 

Cursing  and  swearing,  179. 

D. 

DEAD  bodies,  85. 
Deaf,  dumb,  and  blind,  305. 
Debt,  gene.al  issue  in,  259. 
Debtors.  JJ6- 

joint,  27?. 

Declaration,  6.  236,  237. 
Deer,  «7,  83. 
Default,  241. 

Defence  of  one-elf,  wife,  child.  &c-. 

169. 

Demurrer,  19>). 
l)t  tainer,  by  parol,  72.  100. 
Dbchargin.e;  a  party  charged  with 

felony,  71.  75. 
•« a  party  committed  for  a 

fine,  86. 
Discontinuance,  2.S4, 


turn,  30,41. 
bailing  a  per-on  not  bailabto. 

41. 
of  a  prisoner  committed  on  a. 

defective  warrant,  74. 

•  where  no  crime  has  been  com- 


mittfd,  76. 

killing  to  prevent,  170. 

action  for,  7.  n.  30.  230. 

defence  in,  270. 


Estate,  settlement  by,  .'J.'ij. 
Evidence,  in  ca.'e  of  a  summary  c<Jn.- 

victlon,  83. 

eonf(;8-ion.  101. 

of  marr.'age,  170. 

what  :nay  be  given  under 

general  iss:;o,  240.  and  note. 
• (••ubpxvna,  when    u.u-t    l>e 

given  in,  iC-J. 
of  loss  of  an  instrument, 


muft  be  produced  in  court. 

5:64. 

— — —  of  an  expedition,  264. 
—————improper,  «hen  iintst  b*e 

objeofced  to,  -'ij. 

-i O! 

Of  B 

— • in  rape,  363. 

Kxamination,  100,  101. 

of  party  rirnyir 


rant.  4! 


INDEX. 


Excise,  tide  Inns  and  Taverns. 

Kxocution,  267.  365. 

Executor  and  administrator,  person- 
ally liable,  when  plaintiffs,  for  a 
balance  of  accounts  and  costs, 266. 

Expenses  of  prosecutor  and  witness- 
es 103, 104. 

Extortion,  101,  102. 

F. 

FALSE  imprisonment,    justification 

in,  25,  £6.  29.  3-2.  79. 
when   it  lies, 

28.  73,  74.  226,  227.  233. 
False  return,  67. 

tokens,  68,  69. 

dice.  68. 

pretences,  69,  70. 122. 

Fees  of  a  constable,  80. 

of  justices  of  the  peace,  2251 

— —  of  poundniasters,  413. 
Felony,  102. 

rescuing  or  aiding  prisoner 

to  e?cape,  98.  I'.rf*. 

indictment  for,  188. 

arrest  for,  416. 


Fences,  410,  411,  412. 

Fence  viewers,  401.  410,  411,  412. 

'  neglecting   to   serve 

or  qualify,  406. 

fees,  may  be  limited 


GAMIXG  and  horse-racing,  127. 

•  not  permitted  in  tavern?, 
203. 

— .    •          houses,  a  nuisance,  316.. 

Gaol,  commitment  to,  7-2. 
•  '  impri  onmcnt  in,  183. 

Gaoler,  cannot  let  to  bail,  41. 

Gates,  151. 

General  issue,  192.  239. 

notice  with,  239,240. 

Grandfather  or  mother,  and  grand- 
children, bound  to  support  one 
another,  327,  328. 

Guardian  ad  littm,  197.  307. 

Gunpowder,  when  a  nuisance,  317. 

H. 

HABEAS  coRprs.  73,  74. 
Hawkers  and  peddlers,  129. 
Highways,  131. 

assessment  to  labour  on, 

does  not  gain  a  settlement,  332. 

Homicide,  16-2. 

justifiable.  9. 163, 169, 170. 

person  charged  with  can- 
not be  discharged,  71. 

•  inquisition  of,  vide  Core- 


the  statute  of  jeofails,  190. 

cation  of  jurors  iii,  210. 
Foreign  jury,  210.  n. 
Forfeiture,  103. 
Forgery,  121. 

Former  action,  240.  n.  252. . 
Fortunetellers,  89. 
l-'ruit  trees,  cutting,  420, 421. 


qualifi- 


by  town  meeting,  408. 
Ferries,  105,  106. 
Fine,  distress  for,  93,  94. 

on  constable  or  juror,  211. 

of  jurors  or  witnesses,  for  non- 
attendance,  260. 

Firemen,  exempted  from  serving  on 

juries,  912. 
Firing,  106. 

woods,  419,  420. 

Firearms,  discharging,  315. 

Fixtures.  60. 

Flotsam,  4»1. 

Forcible  taking  and  marrying,  364. 

Forcible  entry  and  detainer,  1Q7. 

within 


excusable,  168, 169, 170. 

Horseracing,  vide.  Gaming  and  horse- 
racing. 

House,  what  is,  34.  57. 

of  correction,  commitment 

to,  72. 

Hue  and  cry,  31,  32. 

Husband  and  wife,  3.  170. 


I. 


IDIOTS,  305. 
Jetsam,  421. 
Immorality,  174. 
Impounding,  93.  408. 
Imprisonment,  131. 
when  to  commence 

anew,  98. 
Indictment,  184. 

for  arson,  34,  35. 

• for  burglary,  58. 

of  a  forcible  entry  and 

detainer,  115. 

for  perjury,  321. 


Indictable  offences,  186. 
Indorsement  of  a  warrant,  46.  418 
419. 


INDEX. 

Infant,  195.  Jury,  potit,  discharging,  193,  19k 
bound  by  his  consent  to  «erve    oath, 

as  an  apprentice,  14,  15.  mu-t   -ii    together    Und 

binding  of  an  apprentice  to,  hear  the  e\ -id -\\< •••• 

J6.  how   to   be   kept  until 

••  cannot  enter  into  a  recogni-  they  agree,  259. 

sance,  41.  fine  for  non-attendance, 

unborn,  163.  £60. 

when  cannot  be  a  rioter,  367.   con-table  must  be  sworn 

Information,  5.  82.  197.  to  attend,  264. 

Informer,  5.  Justices  of  the  pence, 

Inns  and  taverns,  198.  Et  •<  /</<•  Kxtortion. 

conviction   under  Justices'  courts,  229. 

the  act  for  regulating,  257.  attorney  or  COUIIM-] 

Innkeeper,  permitting  gaming,  129.  may  be  sued  in,  .S9. 

203.  — — may  award  a  tali-- 

selling  on  Sunday,  178.  211. 

cannot  try  a  cause,  275.  Justification,  plea  of,  2. 

•  •    when  guiltyof  anuis-anee, 

317.  K. 
Inquisition,  184. 

Instalments  on  execution,  267.  Kiu\  1PPI1»C,281. 
Insurrection,  suppressing,  M5. 

Intoxication,  no  excuse  for  the  com-  L. 

mission  of  crimes,  307. 

Joinder  of  action,  237,  238.  LANDLORD  may  be  admitted  to  de- 
Joint  debtors,  27-.'.  fcml  in  forcible  entry  and  deiain- 
Joint  tenant-  and  tenants  in  common,  er,  120. 

not  guilty  of  felony  in  taking  joint  Larceny  and  robbery,  281. 

property,  285.  Larceny  by  a  xvvnnt  or  apnrei 

Journeyman,  not  to  be  bound  not  to  24. 

use  his  trade,  24.                                 and  cheat,  distinction  lie- 
Issue,  joining,  2i •».  tween,  68. 
.Fudge    or  ju-tiee,    cannot  be   chal-    • indictment  for. 

lenged  or  excepted  to,  214.  petit,  294. 

— oath  of,  318. no  acccs-o: •}>•*  in,  1. 

Judgment  on  a  summary  conviction,    punishable  in  • , 

84.  sessions,  377. 

on  an  indictment,  194.  •                  simple,  281. 

in  a  justice's  court,  265,    mixed,  291,  292. 

266.  Libel,  295,  296. 

Judicial  and  ministerial  acts,  17.  51.  License  to  keep  a  tavern,  199. 

223.  Ligan,  422. 

Jugglers,  89.  Limitation  of  actions,  297. 

Jurisdiction,  plea  to,  190.  of  criminal  pros ••  -1,1 

Jury,  209.  186. 

•        grand,  184,  185.  Liquor,   spirituous,    selling  on   \>.> 

cannot  find   part   of  a  rade,  313. 

bill,  117.  185.  Lotteries,  302. 

number  of,  118.  184.  Lumber,  304. 


Jury,  alien  not  a  good  and  lawful  Lunatic?,  305. 

man,  263.  when  to  be  apprfhf[xi« .. 

foreign,  210.  n.  and  confined,  90. 

de  medietate  linguae,  212. 

petit,  may  find  part  of  a  bill,  M. 

117,  118,  119. 

when  may  find  a  differ-  MAIISTFN.VXC E,  SO". 

ent  offence  f:-<>m  the  one  charged,  -Malice,  163,  164.  1GG. 

-419  'Malicious  prosecution,  2C.  .'jl  t 


468  INDEX. 

Maaalaugirter,  167,  168.  Nuisance  .'>iti. 

no  accessories  in,  1.  horsci . 

of  a  per  on  endeavour-  in  highway,  145. 

ing  to  keep  the  peace,  9.  bawdy  house,  176. 

of  an  officer,  11.  fful  lid  record,  192.  239. 


Mandamus,  311. 

Manufactories,  what  are  nuisances,  O. 

316,317.  OATHS,  318. 

Manumission,  3o7,  388.  of  jurors  and  witnesses,  *59. 

Manner?,  .ettlement  of,  331,  S32.        of  constable  to  keep  the  jury, 

Marriage,  170.  259. 

age  of  consent  to,  325.         of  town-officers,  A03,  404. 

di.  <enl  to,  325.  Office,  settlement  by,  331,  332. 

ettlement  by,  .331.  Officer,  extortion  by,  101,  102. 

Master  and  -ervant,  3.  killing,  164. 

Et  vide  Apprentices,  Servants.   taking  part  of  thing  in  plea, 

Mayhem,  37, 38.  309. 

3fedielate  linguae,  212.  of  militia,  duties,  and  penal- 

Mi.'e  stones  and  guide  posts,  152.  ties  for  neglect,  313. 

16  ).  oath  of,  318,  319. 

Military  stores,  312.  •  before  whom  to  be 

Militia,  312.  taken,  319. 

>•  certain  descriptions  of,  ex-   •  not   taking,   a    for- 

empted   from   serving    on  juries,  feiture    of   office  and  uiisdemea- 

212.  nour,  319. 

• privilege  from  arrest,  359.  Overseers  of  highways,  vide  High- 
Ministerial  and  judicial  act?,  17.  51.  ways. 
Misdemeanour,  31 3.                               • neglecting 

when   a  prosecution  to  serve  or  qualify,  406. 

for  may  be  discharged,  ?6,  37.          of  the  poor,  ride  Poor. 

punishable  in  special    • • action  against, 


sessions,  377. 

justice    may     grant appointment. 


warrant  for,  417.  of,  401. 

Misfortune,  homicide  by,  170.  _______ refusing     to 

Misnomer,  190.  serve,  or  neglecting  to  qualify. 

Misprision  of  felony,  31.  104.  406. 

of  treason,  416. 

Mittimus,  vide  Commitment.  P. 

Murder,  163. 

of  a  person  endeavouring  to   PARDON,  183. 192. 

ke«p  the  peace,  9.  Parent  and  child,  3.  183. 

1  of  an  officer,  10,  11.  • bound  to  support 

, duelling,  95.  one  another,  327,  328. 

indictment  for,  188.  Parentage,  settlement  by,  329,  330. 


Musicians,  314.  Partition  fences,  403. 

Pauper,  commitment  of,  for  refusing 

N.  to  be  examined,  74. 

returning  after  removal,  39. 

.You  compos  mentis,  305.  receiving   and   entertaining 

Honsuit  for  misjoinder  of  parties,  without  giving  notice,  342,  343. 

233.  Payment,  pleading  or  giving  in  evi- 

not  a  bar  to  another  action,  dence,  240. 

255.  Peace,  killing  to  preserve,  169. 

plaintiff  may  elect  to  be-  FirfeAflray,  Riot.  Surety  of  tin 

come,  265.  Peace. 

judgment  on,  266.  Pedlars,    vide    Hawkers  and   Fed- 

A'ofire,  settlement -by,  3ST.  ivjarc. 


INDEX. 


I'.' 


PeuaJ  act,  5 

justice  may  grant  warrant 

for  offence  against,  416. 

Penalty,  5. 

may  be  imposed  by  town 

meeting,  and  sued  for  by  supervi- 
sor, 408. 

Perjury  and  subornation,  320. 

Perjury  under  absent  and  abscond- 
ing debtor  act,  !iG. 

in  swearing  to  affidavit  to 

obtain  discharge  from  execution, 
269. 

Personating  bail,  42. 

Pestilence,  88. 

Playhouses,  \vhen  a  nuisance,  316. 

Pleas,  their  kinds,  238. 

to  an  indictment,  190. 

in  a  qui  tain  action,  6. 

general  issue,  36.  192.  239. 

of  another  action  pending,  148. 

255. 

in  abatement,  238. 

special,  239. 

— —  payment,  240. 

former  action,  240.  n.  252. 

of  title,  257.  409. 

Poisoning,  163,  164. 

Polygamy,  324. 

Poor,  3*5. 

children  may  be  bound  appren- 
tices by  overseers,  17. 

Poor  rate,  not  removable  by  certio- 
rari,  63. 

. how  made,  348. 

how  raised  and  levied,  415. 

Popular  action,  5. 

Posse  romilatus,  27.  29. 

Pot  and  pearl  ashes,  354,  355. 

Pounds  V13. 

Poundmasters,  401. 

— — neglecting  to  serve  or 

qualify,  406. 

Presentment,  184. 

Pretended  title,  310. 

Prie;-t,  cannot  hold  an  office,  276. 

Principal,  357. 

and  accessory,  1. 

Prison  breaking,  98. 

Private  roads,  136,137. 

Privilege.  357. 

Process,  301. 

serving  on  Sunday,  179. 

in  a  qui  tain  action,  6. 

•  in  a  justice's  court,  231. 

Prochein  amy,  197.  307. 

may  be  appoint  b 


Prostitutes,  U9. 
Public  defaulters, 
--  lands,  trespass  on,  V-'l 
Punishment  in  rases  not  <)!• 
provided  for  by  law,  74. 


QUAKERS,    when    exempted    from 

serving  on  juries,  21'2. 
--  exemption   from   militia 

duty,  313. 

when  not  compellable  to 


act  as  assessor  or  collector. 
Qui  tarn  action,  5. 

B. 

RAFFLING,  129. 

Rape,  362. 

indictment  for,  188. 

Receivers  of  stolen  goods,  3,  4.  294,- 
295. 

Recognisance,  364. 

forfeiture  by  not  ap- 
pearing, 20.  49. 

of  bail,  41. 

acknowledging  in  thr 


name  of  another  person,  42. 

removal  of,  by  certiu- 


rari,  62.  66. 
ri,  64,  65. 

85. 


396. 
396. 


on  obtaining  certiorn 

•  when  coroner  to  iakf 

of  witnesses,  100. 
by  ferry-keeper,  105- 
by  innkeeper,  203. 

•  on  a  plea  of  title,  'J.Y7 
•of  the  peace,  394, 39.0 

of  the  goodbehavi.il!  i 
to  prosecute,  417. 


Regulations  of  towns,  408, 
Relief  of  the  poor,  349. 
Religious  meetings,  disturbing,  177. 
Remanding  felons  and  indictments 

103. 
Remedy  by  common  law  or  statute 

106. 

Removal  of  paupers,  338. 
Renting  settlement  by,  331,  SS2. 
Rent,  S65,  366. 
Replevin,  94. 
Re-restitution,  120. 
Re.- rue,  97. 
'{i-'-t'-t'it'on  of  ftolon  jroodi,  10?. 


470 


INDEX. 


of  land  forcibly  detain- 
ed, 115,  &<•,. 

Hc-'aking  after  an  escape,  99. 

Rewards  fo:  destroying  noxious  ani- 
mal and  weeds,  41>9,  410. 

Riot,  rout,  and  imiawfui  assembly, 
366,  367. 

Rivers,  diverting  water  of,  and  ob- 
stn.ctng,  £16. 

public  367,  363. 

Rone)',  riik  Hisrbways. 

Robber,  kii-intr,    69. 

"Robbery,  vide  Larceny  and  rol>bery. 


S. 


SEARCH-WARRANT,  368. 

•. to    search 


for 


deer's  skin  or  venr'-on,  87. 

Selling  liquor  to  apprentice,  servant, 
cr  slave.  205,  <H;6. 

Senato".  privilege  of.  357,  358. 

Separation    and    separate)    mainte- 
nance   iT:'. 

Servants,  371 . 

binding  of  servants,  vide 

Apprentice?. 

when  disorderly  persons, 

may  be  bound  out,  90. 

committing  larceny  of  mas- 
ter'", goods,  214.  iic6,  287. 

:  lenient  of,  331.  S3,". 


Supervisor  to  MI'C  for  penalties,  40;!. 
Sirpreme  coi'rt,  jurisdiction  of,  62,  (IS. 
Surety  of  the  peace,  8.9.11.  :;c.M. 
-  -  wife  may  have 

rv^'ii.-t   husband,  suid  rice,  rrrsit, 

174. 

Surety  of  the  good  behaviour,  396. 
---  gamester 

may  be  compelled  to  find,  12<i. 
----  person  of 

bad  fame,  175. 

Suspicion  of  felony,  warrant  on,  417. 
Swearing,  profane,  179. 
--  to  an  oath,  and  affirmation, 

320. 

T. 

Tales  de  cirrumstantibus,  211.  261. 
Taverns,  ride  Inn-  and  Tavern?. 
Taxes,  settlement  by  paying.  .;.>{. 


Sess-lons,  S74. 

al!  one  day,  13. 

Settlement  of  the  poor,  329. 

Sheriff,  379. 

•• —  a  conrervator  of  the  peace, 

27.  222. 

cannot  let  io  bail,  41. 

action  against,  2£7. 

Slaves,  381. 

Soldiers,  privilege  from  arrest,  359. 
S61. 

Special  ses?ions,  377. 

Stabbing,  165. 

Standing  mute,  24.  193. 

Statute  of  limitations,  2.39. 

Strays,  309,  390. 

Subornation,  ride  Perjury  and  su- 
bornation. 

Summons,  20.  51.  390,  391. 

of  a  juror,  211. 

Sunday,  arrest  on,  28.  40.  179. 

profanation  of,  177. 

Snpersedeas,  what  is,  120. 

Supervisor,  401. 

refusing  to  «erve,  and 

neglecting  to  qualify,  406. 


-  assessment   and    collection,. 

414,  415. 

Theft  bote,  3.  104- 
Timber  cutiing,  420,  421. 
Toll,  and  toil  gatherer,  155. 
Town  clerk,  401. 
--    duty    in    relation    to 

strays,  389,  390. 

refusing  to  serve,  and 


negating  to  qualify,  405. 

duiies  of,  407,  408. 


Towns,  400. 

support  of  poor,  after  divi- 
sion of,  316,  327. 

Town  meetings,  401,  402. 

Traverse  of  force,  118. 

may  be  by  parol,  11?. 

Treason,  415,  416. 

no  accessories  in,  1. 

two  witnesses  in,  125. 

indictment  for,  13o. 

and  riot,  distinction  be- 
tween, 367. 

Treasure  trove,  84,  85. 

Trees,  cutting,  426,  421. 

Trespass,  when  it  lies  against  a  jus- 
tice, 84.  227.  275. 

for  injuring  trees  in  high- 
way, 134. 

•  against  an  officer,  142, 143. 
— — general  issue  in,  239. 

— — wilful  or  malicious,  267. 

in  receiving  the  goods  of 


husband  from  his  wife,  285. 

on  town  lands,  409, 

warrant  for,  417. 


INDEX. 


471 


'•Trespass  in  cutting  trees,  l, 

on  public  lands,  421. 

defence    and  ju  tification 

in,  28.  36.  79.  Hi.  133.  C::'J. 
Trial,  »59. 
Turnpikes,  151. 

V. 

VAGRANT,  89. 

Variance, 

Ven:re  facias,  210.  259,  260. 

VV>,lirt.  219,  2:0,  221.  265. 

Voire  dire,  217. 

W. 

WARRANT  416. 

execution  of,  28.  S3. 

'  return  of,  33. 

to  apprehend  the  father 

of  a  bastard  chiid,  and  endorsing 
1     sucli  warrant,  45,  46. 

constable  bound  to  Ex- 


ecute, 78. 


when     constable 


may 


make  a  deputy  to  execute,  78. 

to  examine  a  debtor,  tf6. 

to  break  open  home  to 


take  goods  for  rent,  92. 
Weeds,  410. 

"Wife,  vide  Husband  and  wife. 
cannot  commit  larceny  of  her 

husband's  goods,  285. 

husband  bound  to  mpport,  328. 

but  not  her  parents  or  children, 

328. 
— —  may  demand  Miretyof  the  peace 

against  her  husband,  399. 
WrH  or  iiitent,  concurrmcp  of,  nn- 


cruninalilu, 
305,  ^iC>. 

\Vtlbe80,  informer,  when  r;in,i.ii  \,t- 
83. 

deposition  of,  to  In-  n^ed  in 

another  si;; 

re-cognisance  of,  101. 

expenses  of,  1   .',  l.'i. 

under  the  act  against  gam- 
in;:, 128. 

— — — -  when  wife  maybe,  44.174. 

interested,  147. 

prosecutor  on  an   indict- 


ment 

two  in  treason,  185. 
oath,  259. 


• line    for    non-attendance, 

260. 

- — •  action  against,   for   non- 
attendance,  261. 

subpoenaing,  262.  263. 

who  must  swear,  263. 

when  security  for  defend- 
ant, must  be  released, 

party  cannot  be,  263. 

•  subpoenaing  before    arbi- 

trators, 28H. 

• —  idiots,  lunatics,  and  mad- 
men, 307.    • 

privilege  from  arrest,  360, 

361. 

steve,  381 . 

Women,  when  not  to  be  imprisoned 
on  execution,  -71. 

forcible  taking  and  marry- 
ing of.  364. 

Woods,  419;  420,  421. 

Wounding,  38. 

Wreck,  421,  422,  423. 

Writ  of  error.  61.r>.  62 


ARREST. 

A  man  is  protected  by  his  own  house  from  arrest  on  civil  pro-  s  Co.  >t 
<:ess,  the  outer  dour  and  windows  of  which  cannot  be  broken  open   Cowp' '" 
to  make  an  arrest ;  but  if  the  officer  have  gained  an  entrance  into 
the  house,  by  the  outer  door  being  open,  he  may  break  open  an 
inner  door  to  take  the  defendant.     As  to  what  shall  be  deemed 
the  house  of  the  defendant,  where  parts  of  the  same  building  are 
occupied  by  different  persons,  it  may  be  laid  down  as  a  general 
rule,  that  no  tenement  can  confer  this  immunity,  the  breaking  of  2  ^a*t  P.  c. 
which,  in  the  night  time,  with  a  felonious  intent,  cannot  be  charged 
in  an  indictment  for  burglary  to  have  been  committed  in  the  man- 
sion of  the  occupant.      Hence,  the  apartment  of  an  inmate  or  Cowp.  i. 
lodger,  hiring  part  of  a  house,  the  residue  being  occupied  by  his 
landlord,  or  some  other  person,  and  both  using  the  same  outer 
door,  is  not  protected;  and  it  has  been   decided,  that  where  a   5Johm.K?p. 
man  let  out  part  of  his  house,  reserving  for  himself  and  occupy- 
ing an  inner  room,  an  officer  entering  through  the  outer  door  of 
the  house,  being  open,  might  break  open  the  inner  door  to  execute 
process. 

An  officer  may  break  open  doors,  to  search  for  stolen  goods,   10  Johm. 
after  a  demand  and  refusal  of  admission.  Rep' 2W' 

The  body  of  a  defendant  who  has  been  arrested  may  be  detain-   H  John?. 
ed  under  arrest,  after  his  trial,  until  the  court  shall  have  made  tin 
their  opinion. 


ARSON. 

Every  person  who  shall  wilfully  burn  any  building,  ship,  rr 
vessel,  or  any  goods,  wares,  or  merchandise,  or  other  chattel, 
with  intent  to  prejudice  any  person  or  persons,  or  body  corpo- 
rate, that  hath  or  shall  underwrite  any  policy  or  policies  of  insur- 
ance thereon,  and  accessories  to  the  same,  before  the  fact,  shall, 
upon  conviction  thereof,  be  punished  with  imprisonment  for  lif'1 
in  the  state  prison.  Sess.  38.  c.  123. 


BANK  NOTES. 

By  the  act  sess.  38.  c.  32.  passed  February  10,  1315,  the  firjt 
of  the  act  entitled.,  an  act  to  prevent  the  passing  and  rr 
f  r,o  1 


474  ADDENDA. 

cc-iving  of  bank  notes  less  than  Iho  nominal  value  of  one  dollar. 
;  is  suspended  until  the  end  of  the  next  session 

of  :'ie  legislature,  until  which  time  it  shall  be  lawful  to  pass  and 
receive  bank  notes  less  than  the  nominal  value  of  one  dollar. 

EXECUTION. 

All  sheep,  to  the  number  often,  together  with  their  fleeces,  and 

.  ed  from  the  same  ;  one  cow  :  two  swine,  and 

y  wearing  apparel  and  bedding, 

necessary  cooking  utensils,  one  table,   tix  chairs^six  kniv 
forks,  six  plates,  and  six  tea-cups  and  saucers,  owned  by  a?; 

heing  a  householder,  shall  !.  from  execution  and 

.  t,-nt.     Se?-  .  J~. 

'•cutions  to  be  issued  on  judgment?  hereafter  to  be  re- 
,  ed  upon  contracts,  it  shall  be  lawful  to  direct  the  collection 
of  the  interest  on  the  said  judgment  from  the  time  of  recovering 
'    e  same  until  puid.     Sess.  Sti.  c.  203.  s.  50. 


IMMORALITY. 

It  shaii  not  be  lawful  for  the  commissioners  of  excise  to  grant  a 
license,  or  permit  any  person  to  retail  spirituous  liquors  under  five 
gallons,  if,  in  the  opinion  of  such  commissioners,  such  applicant  is 
i.'Ot  of  good  moral  character.  Sess.  38.  c.  1(37. 

If  any  person  shall,  on  the  day  of  any  militia  parade  or  rendez- 
vous, or  of  any  town  meeting  or  election,  or  the  assembling  of  any 
Inhabitants  of  this  state  to  celebrate  the  anniversary  of  American 
independence,  expose  to  the  public,  or  have  in  his  possession, 
within  half  a  rnile  of  such  parade,  town  meeting,  election,  or  cele- 
bration, as  aforesaid,  any  eo-table,  wheel  of  fortune,  or  other 
gaming  table,  or  gaming  box  or  machine,  he  shall  forfeit  the  sum 
cft\s  '.ollars,  to  the  use  of  the  poor  of  the  city  or  town  in 

v,  hich  such  oOence  may  be  committed,  to  be  sued  for  and  recover- 
ed by  and  in  the  name  of  the  overseer?  of  the  poor  of  such  city 
or  town,  in  any  court  of  competent  jurisdiction,  lirid. 

And  it  is  made  the  duty  of  all  sheriffs,  their  under-sheriffs,  and 

•;;ers,  marshals,  and  constables,  and  it  is  made 

all  justices  of  the  peace  to  break,  burn,  or  otherwise 

destroy  ail  and  every  such  table,  wheel,  or  machine,  so  exposed 

o.-  po:  Hid. 


JUSTICES  OF  THE  PEACE. 

Whenever  any  new  general  commission  for  the  peace  for  any 
• !!  be  received  at  the  clerk's  office  for  such  count- 


DA. 

clerk  shall   forlhv.-Kh   give  notice  thereof  to  nil  p-  n  in 

commisaioD,  and   not  named   in  such  new  general  cniniiiis 
and,  from  the  time  of  reo  i  notice,  or  in  case  of  failure, 

of  being  so  notified,  frn::  Cation  of  thirty  • 

iVoni  tho  time  of  the  receipt  of  such  commission  at  the  clerk's  of»c 
; -iisaid,  ev»  >fthc  peace  shall  cease  to  act  in  his  said 

office,  unless  special!;  <[  by  statute  to  proceed  in  btiv 


rooR. 

The  family  of  an}'  person  \vho  now  is.  or  may  hcrc:iftcr  be  call- 
ed into  militia  service  of  this  slate,  or  of  the.  United  States,  during 
the  time  of  his  actually  being  in  such  service,  and  for  thirty  days 
thereafter,  shall  not  be  removed,  except,  where  such  family  shall 
have  removed  into  such  city  or  town  since  such  person  was  order- 
ed into  service.  Sess.  38.  c.  13.  s.  1. 

The  overseers  of  the  poor  of  the  town  in  which  such  family 
resided,  at  the  time  such  person  was  ordered  into  service,  shall 
afford  the  same  relief  to  his  family  during  his  absence,  as  if  he  was 
legally  settled,  s.  2. 

The  expense  of  supporting  the  family  of  surh  person,  provided 
he  is  not  legally  settled  in  the  city  or  town  which  may  incur  such 
expense,  and  all  the  expense  of  supporting  the  family  of  any  per- 
son who  has  or  may  enter  into  the  army  or  navy  of  the  United 
States,  or  into  the  regular  service  of  this  state,  who  has  no  legal 
settlement  in  this  state,  shall  be  a  charge  upon  the  city  or  county 
in  which  they  are  found  to  reside,  and  shall  be  allowed  in  the  city 
or  county  treasurer's  account  with  the  state  treasury,  s.  3. 


TOWNS. 

By  the  act  sess.  37.  c.  200.  s.  30.  passed  dpril  15,  1814,  the 
following  words  are  to  be  inserted,  after  the  first  day  of  March  then 
next,  in  addition  to  the  oaths  to  be  taken  by  the  supervisor,  town 
clerk,  assessors,  commissioners  of  highways,  and  overseers  of  the 
poor  of  the  several  towns  in  this  state  : 

"  And  that  I  am  a  citizen  of  the  United  States,  and  th.it  I  am  a 
freeholder,  and  an  actual  resident  of  the.  town  of  [here  insert  the 
name  of  the  town]  in  the  county  of  [here  insert  the  name  of  the 
county."] 


WOLVES. 

Any  person  who  shall  kill  any  grown  wolf,  within  any  county  in 
this  state,  shall  be  entitled  to  a  state  bounty  oftwcnty  dolhrc.  and 


[.76  ADDENDA. 

for  each  wolf's  whelp  seven  dollars  and  fifty  cents,  to  he  paid,  in 
the  first  instance,  by  the  treasurer  of  the  county  in  which  tliey  shall 
be  killed,  and  charged  and  allowed  in  his  account  with  the  state 
treasury;  and  he  shall  he  entitled  to  the  like  bounty  from  the 
county  in  which  such  wolf  or  whelp  shall  be  killed,  to  be  audited 
allowed,  and  paid,  as  other  contingent  county  charges.  Sess.  38. 
c.  123.  s.  I. 

To  obtain  such  bounty,  the  person  killing  such  wolf  or  whelp 
shall  take  the  head  thereof,  the  skin  and  ears  entire  thereon,  to 
some  justice  of  the  peace  of  the  county,  and  make  oath  of  the 
time  and  place  when  and  where,  and  by  whom,  it  was  taken  and 
killed,  and  shall  also  submit  himself  to  such  further  examination, 
upon  oath,  concerning  the  taking  and  killing  such  wolf  or  whelp, 
as  the  said  justice  may  require,  who  shall  thereupon  cut  off  and 
burn  the  ears,  and  give  the  person  so  applying  a  certificate  thereof, 
and  setting  forth  the  substance  of  such  oath  and  examination,  s.  2. 

No  bounty  shall  be  paid  for  taking  and  killing  a  whelp,  unless  it 
shall  appear,  upon  the  examination  of  the  person  applying  for  the 
bounty,  that  the  mother  was  not  taken  before  she  brought  forth 
such  whelp,  s.  3. 

If  any  person  applying  for  a  certificate  shall  be  guilty  of  wilful 
and  corrupt  false  swearing  in  his  examination,  he  shall  be  adjudged 
guilty  of  wilful  and  corrupt  perjury,  and  shall,  upon  conviction 
thereof,  suffer  the  punishment  directed  by  law  in  cases  of  wilful 
and  corrupt  perjury,  s.  4. 


ERRATA. 

Paije  43,  last  line,  Tor  8  read  5. 

.— —  61,  note  (*)  f9r  Appendix  rend  post ,  />.  229. 

70,  line  19,  for  office  rvM\  offence. 

36,  after  carriage  read  t/ie  indictment  in  both  these  cases  teas  sustained. 

——71,  lim-  36,  after  fa  reail  the. 

136.  after  the  last  lint-,  read  certain,  ofieldch  day  notice  shall  It  given  by  the  overseer  ii 

the  uivner  or  orcuftnnt,  and  being  so  met  they  shall  view  the  lands 

143.  line  -tS.  for  fine  ivad//ne?. 

161, 1 1.  for  Inspectors  read  Commissioner*. 

.  166, 27   after  him  read  a. 

18},  —  16.  for  imprisonment  read  prison. 

191. 3.  H.  30.  33.  45,  for  anterfoiti  read  avterfoitt. 

209, 14,  for  31  read  36. 

— —  214,  —  6,  for  recusatis  read  reeusatio. 

267, 13,  for  or  n-zt\J'or. 

287, 11,  after  like  read  this  ii  not,  as  respects  tfie  servant,  K  receipt  of  the  fnadt  by  tfo 

nifi!'cr. 
~—  293,  —  46,  after  mmry  irnd  war?. 


- 


